On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 19, 2012 -
Before Judges Fisher and Grall.
Anthony Reitzler is currently serving a sentence of life imprisonment for crimes he committed in 1981 - murder, N.J.S.A. 2C:11-3a(1), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4. He was sentenced on June 18, 1982, and his sentence was subject to a twenty-five-year term of parole ineligibility that has now expired.
Reitzler appeals from a final decision of the Parole Board issued on December 16, 2009, denying him parole and establishing a thirty-six-month future eligibility term (FET). He also appeals from a subsequent decision of the Board issued on November 17, 2010, denying parole and establishing a thirty- four-month FET. On appeal Reitzler argues:
"OFFICIAL RECORD" IS FUNDAMENTALLY UNFAIR WHERE THAT RECORD CONTAINS FACTUALLY INACCURATE INFORMATION, AND THEREFORE A VIOLATION OF "DUE PROCESS[.]"
"1979 PAROLE ACT," N.J.S.A. 30:4-123.45 TO 123.69 (L. 1979, c. 441)[,] REQUIRES [A] PAROLE BOARD TO MAKE DETERMINATIONS BASED UPON "WHOLE RECORD" AND ITS FAILURE TO DO SO IS A VIOLATION OF DUE PROCESS AND THUS CREATES A "LIBERTY INTEREST" ISSUE.
Because the Board's decisions are "supported by sufficient credible evidence on the record as a whole," we affirm. R. 2:11-3(e)(1)(D). We add that the Board applied the proper parole standard and addressed Reitzler's objections to the accuracy of the records relied upon by the panels of the Board that made the initial determinations on his parole and FET. Because the issue may arise again, we stress that it would be wholly improper for a Board or a Board panel to rely on two convictions for robbery while armed referenced in Reitzler's pre-sentence report (PSR) that he contradicted by producing a "certified copy of convictions" establishing that "the robbery while armed (two counts) was dismissed for lack of prosecution."
The Board's decision of November 17, 2010 addresses this matter and indicates that its panel reconsidered the case "based on the information" Reitzler provided. To the extent that the Board's November 17, 2010 decision suggests that defendant has an additional burden of contacting probation to correct the error in the PSR, the Board is mistaken. The Board has an obligation to refrain from relying on information that it has reason to believe is inaccurate and may not rely on the apparently erroneous information in the PSR unless it confirms its accuracy.