June 15, 2012
ANTHONY RUSSO, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 31, 2012
Before Judges Fuentes, J. N. Harris, and Koblitz.
This is an appeal from a denial of parole. Former death-row inmate Anthony Russo, now approaching his seventy-third birthday, is currently serving a complicated tripartite sentence: (1) a commuted life sentence for a 1961 murder; (2) a consecutive sentence of fifty years (with a twenty-year parole disqualifier) for a 1986 conviction of first-degree distribution of controlled dangerous substances;*fn1 and (3) a consecutive sentence of another three years for a 2003 third-degree escape. He appeals from the June 29, 2011 final decision of the New Jersey State Parole Board (the Board) denying him parole and imposing a thirty-four-month future eligibility term (FET). We affirm.
Russo's involvement in the New Jersey criminal justice system can be traced as far back as December 1959, when he was arrested for simple assault in Belleville. In March 1961, Russo was charged with the capital murder of an off-duty police officer during an attempted robbery in Newark. He was convicted and sentenced to death. On January 17, 1972, the death sentence was commuted,*fn2 and parole was subsequently granted in August 1975.
While on parole, Russo was charged with, and convicted of, several offenses committed in 1981. He was re-incarcerated, but paroled again in April 1984.
During this second period of parole, Russo was charged and ultimately convicted by a jury of several drug-related offenses, resulting in an aggregate sentence of fifty years incarceration with twenty years of parole ineligibility, consecutive to the life term earlier imposed.
In March 2003, Russo escaped from the custody of the Department of Corrections. He was convicted of this crime in December 2003 and sentenced to a three-year term to be served consecutive to the sentences he was already serving.
Since 1992, while incarcerated, Russo was found guilty thirteen times of committing prohibited acts, including four asterisk charges. See N.J.A.C. 10A:4-4.1(a) ("Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most sever sanctions."). The last disciplinary action against Russo was in September 2006.
Russo's most recent parole application was denied on June 29, 2011.*fn3 The Board concurred with the assessment of its Adult Panel, finding that "a preponderance of the evidence indicated that there was a reasonable expectation Mr. Russo would violate conditions of parole if released on parole [at] that time." An FET of thirty-four months was established.
The Board accepted the Adult Panel's identification of six mitigating factors in Russo's favor: participation in programs specific to plaintiff's behavior; participation in institutional programs; average to above average institutional reports; attempts made to enroll and participate in programs but was not admitted; minimum custody status achieved; and commutation time restored. Nonetheless, the Board noted the following factors favoring denial of parole: Russo's prior criminal record is extensive and repetitive; Russo was incarcerated for a "multi crime conviction"; "[c]urrent opportunities on community supervision terminated"; prior opportunities on community supervision have failed to deter criminal behavior; prior opportunities on community supervision have been violated in the past; prior incarcerations did not deter criminal behavior; institutional infractions were numerous; and insufficient problem resolution. Specifically, the Board accepted the Adult Panel's notation, "[Inmate] repeatedly returns to criminal activity after several chances to return to the community with no understanding of his thinking or behavior." Furthermore, the Adult Panel noted, "[Russo] appears to not recognize the seriousness of his actions."
Russo argues that in light of his advanced age, recent successful participation in many prison programs, job offers awaiting him in the community, letters written on his behalf by family members and friends, and the "unlikelihood of his reoffending," we should reverse the Board. He also asks us to compare his situation to six other inmates who were either granted parole or reconsideration of a parole denial.*fn4 Lastly, Russo requests that we "bless not only him, but bless [ourselves] as well with a showing of mercy by reversing the Board and ordering Mr. Russo released." Because the record supports the individualized assessment made by the Board, we are unable to fulfill Russo's yearning for release.
Our scope of review is narrow. When we review the Board's denial of parole, we examine the following:
(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its actions; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998).]
The court accords the Board's decision a presumption of validity, and the burden is on Russo to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). As with other agency actions, the decisions of the Board will not be disturbed unless they are arbitrary, capricious or unreasonable, or are not supported by substantial credible evidence in the record as a whole. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 192 (2001). Moreover, because the Board's decisions are highly "individualized discretionary appraisals," the Board is vested with "broad but not unlimited discretionary powers" in reviewing an inmate's parole record and rendering a release decision. Id. at 173 (internal quotation marks and citations omitted). Consequently, the Board's decision should 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.), certif. denied, 111 N.J. 649 (1988).
Because Russo's most recent offense occurred in 2003, his parole release is governed by N.J.S.A. 30:4-123.53(a), which provides for such release unless, "by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate the conditions of parole . . . if released on parole at that time." In this instance we do not find that Russo has met his burden to set aside the Board's parole and FET decisions. In this regard, we note that the Adult Panel considered each of the factors set forth in N.J.A.C. 10A:71-3.11(b) in determining that parole was not warranted. In particular, it considered, among other factors, Russo's prior criminal record, violation of parole, recidivism, and lack of insight, and it balanced concerns arising from those circumstances against stated mitigating factors.
In setting an FET, the Board applied N.J.A.C. 10A:71-3.21(a)(1), which provides that when an inmate is serving a sentence for murder, the standard FET is twenty-seven months. The FET, pursuant to N.J.A.C. 10A:71-3.21(c), "may be increased or decreased by up to nine months." The Board's increase of Russo's presumptive FET by seven months recognized the presence of both the aggravating and mitigating factors in his case. We conclude that the Board utilized the proper standards in denying parole at this time, and that the denial was well grounded in the evidence.