March 23, 2012
JASON ABER, APPELLANT,
NEW JERSEY PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Graves and Koblitz.
This is an appeal from a denial of parole. Jason Aber is currently serving a thirty-year term of imprisonment, with fourteen years of parole ineligibility, for committing two first-degree aggravated sexual assaults, a first-degree robbery, a second-degree aggravated assault, and a second-degree burglary. He appeals from a final decision of the New Jersey State Parole Board (Board) dated December 22, 2010, denying him parole and imposing a thirty-six-month future eligibility term (FET). We affirm.
Aber's presentence report dated February 2, 1998, contains the following background information:
The defendant, along with co-defendant Roger Ross, decided to burglarize the 53-year-old, 5'1" victim after their plan to commit an armed robbery of a deli failed. The defendant knew that the victim lived alone and was an "easy mark." He and the [co-] defendant forced their way into her apartment, injuring the victim in the process, and each defendant sexually assaulted the victim twice. Jason Aber, by his own admission, twice choked the victim in an attempt to eliminate any witness. His robbery attempt netted him $7.00 from the victim, who displayed incredible fortitude during her ordeal, offering the defendant a toy for a fictitious child for whom he claimed to need the money, promising not to call the police, and preserving evidence.
The victim is now in therapy and is understandably distraught as a result of the horror in which she was subjected.
The presentence report also noted that Aber had consumed drugs and alcohol prior to committing the offenses:
The defendant stated that on the night of the sexual assault he ingested cocaine and marijuana. He obtained a gram of cocaine while at the Boro Pub and then he and Roger Ross went to a second bar, Blackmoore's, where he used additional drugs and drank Jack Daniel's whiskey and beer. He denied becoming intoxicated.
In determining that there is a substantial likelihood Aber would commit a new crime if released on parole and therefore parole should be denied, the Parole Board Panel (Panel), which initially denied parole, considered the following mitigating factors: Aber's minimal prior criminal history; average to above average institutional reports; participation in institutional programs; and his attempt to enroll and participate in additional programs. Nevertheless, the Panel's reasons for denying parole included the following: "Insufficient problem resolution, specifically, a lack of insight into criminal behavior, minimization of conduct, and a substance abuse problem that has not been sufficiently addressed."
In addition, the Panel noted that Aber "did not even complete AA in 13 years [of incarceration]," and it found that Aber "needs to address his criminal thinking and his drug and alcohol issues." Based on its interview with Aber and his preparole report, the Panel also determined that Aber "has no empathy for [the] victim and manner in which she was terrorized. Despite programs [he] has no idea what he would say to her."
Aber appealed the Panel's decision to the full Board, which affirmed the decision to deny parole and establish a thirty-six- month FET. On appeal to this court, Aber presents the following arguments:
PANEL FAILED TO CONSIDER MATERIAL FACTS.
PANEL FAILED TO DOCUMENT EVIDENCE.
We conclude from our review of the record and applicable law that these arguments are clearly without merit, Rule 2:11-3(e)(1)(E), and the decision by the Board is supported by sufficient credible evidence. R. 2:11-3(e)(1)(D). We add only the following comments.
Parole Board determinations are not to be reversed unless they are arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). Because Aber's offenses were committed in 1996, he was entitled to be released on parole unless the Board determined by a preponderance of the evidence there is "a substantial likelihood" that he would commit a crime if released on parole. N.J.A.C. 10A:71-3.10(a). Although Aber argues that the Board did not consider his medical condition, the Board noted that a preparole medical report reviewed by the Panel detailed his condition.
When reviewing a final decision of a state agency, such as the Parole Board, we must determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotation marks omitted). The Parole Board's decision will only be set aside "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of the State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988). Applying these principles to the facts in this case, we find no basis to disturb the Board's final decision.
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