May 15, 2012
ISRAEL MARTINEZ-PETRARCA, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2012
Before Judges Graves and Harris.
Plaintiff Israel Martinez-Petrarca currently serves a ten-year term of imprisonment for first-degree employing a juvenile in the commission of a criminal offense, N.J.S.A. 2C:24-9.*fn1 He appeals from a final decision of the New Jersey State Parole Board (Board) dated November 17, 2010, denying him parole and imposing a twenty-three-month future parole eligibility term. We affirm.
In its final decision, the Board denied plaintiff's application for parole after finding that: (1) an extensive and repetitive prior criminal record existed; (2) the commission of a new offense while on probation (but status not formally terminated or revoked) occurred; (3) a prior opportunity on probation failed to deter criminal behavior; (4) prior incarceration did not deter criminal behavior; and (5) a recent institutional infraction as demonstrated by plaintiff's interview with the Board's two-member panel and documentation in plaintiff's case file.
The Board also noted specific mitigating factors in plaintiff's application for release on parole, including plaintiff's: (1) mostly infraction-free status during incarceration; (2) participation in institutional programs; and (3) attempt to enroll and participate in rehabilitative programs.
The Board expressly rejected plaintiff's claims that the two-member panel failed to properly consider the facts and circumstances of his offense, N.J.A.C. 10A:71-3.11(b)(5), as well as the aggravating and mitigating factors surrounding his offense, N.J.A.C. 10A:71-3.11(b)(6). After canvassing the record, the Board found no merit to plaintiff's claim of having special medical needs. The Board further found that the two-member panel never considered the gravity of plaintiff's crime as an independent factor, but instead reached its conclusions based upon "the aggregate of information pursuant to N.J.A.C. 10A:71-3.11." Consequently, the Board concurred with the two-member panel's recommendation and ruled that a preponderance of the evidence "indicated that there is a reasonable expectation that [plaintiff] would violate the conditions of parole if released on parole at this time." This appeal followed.
On appeal, plaintiff raises the following points for our consideration, which we set out verbatim:
POINT I: STATE DENIED THIS APPELLANT HIS 14TH U.S. CONSTITUTIONAL RIGHT TO DUE PROCESS.
POINT II: STATE DISREGARDED RULED OPINIONS AND REGULATIONS IN TITLE 30.4-123.
POINT III: STATES DECISION WAS ARBITRARYAND CAPRICIOUS.
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), the decision of the Board is supported by sufficient credible evidence, Rule 2:11-3(e)(1)(D), and the decision is entitled to our deference. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 121 (2001). We add only the following comments.
N.J.S.A. 30:4-123.53(a) provides that "[a]n adult inmate shall be released on parole" unless "by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate conditions of parole imposed . . . if released on parole at that time." The Board's finding that there is a reasonable expectation that plaintiff would violate conditions of his parole was supported by the totality of the evidence including evidence of plaintiff's record of offenses culminating in the commission of the first-degree crime for which he is now incarcerated, his failure to be deterred from committing new offenses following probation opportunities in the past, his disciplinary infraction, and the two-member panel's "concern . . . that [plaintiff] lack[s] insight into [his] criminal behavior and minimized [his] conduct." Although the Board found mitigating factors, it was within the Board's legally cognizable discretion to determine that the considerations militating in favor of the finding that there is a reasonable expectation of plaintiff committing parole violations if released on parole outweighed any mitigation. Accordingly, the Board's decision was not arbitrary, capricious, or unreasonable on the record presented. See McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).