June 29, 2012
ENRICO HERNANDEZ, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 23, 2012
Before Judges Graves and Koblitz.
Enrico Hernandez is serving an aggregate sentence on five separate indictments of thirty-three years and six months for convictions of sexual assault, five counts of aggravated assault, burglary, criminal restraint, terroristic threats and criminal trespass. He appeals from an October 20, 2010 final agency decision of the New Jersey State Parole Board (Board) denying him parole for the third time and establishing a thirty-six-month future parole eligibility term (FET). We affirm.
The Board noted that Hernandez had an extensive criminal record. He was arrested twenty-seven times as a juvenile and served a term of juvenile incarceration. As an adult, he was convicted of possession of CDS and receiving stolen property. He then committed the crimes that resulted in his current incarceration at Northern State Prison.
He pled guilty to committing a home burglary in November 1994. In September 1995 he assaulted an acquaintance in her home, which resulted in convictions after trial of criminal trespass, criminal restraint, aggravated assault and terroristic threats. He then pled guilty to sexually assaulting a twelve-year-old girl in April 1995, when he was twenty-one years old. He pled guilty to aggravated assault in connection with an incident in the county jail in November 1995, when he started a fire on his mattress and then attacked two corrections officers. He also pled guilty to aggravated assault after again attacking two corrections officers in January 1996.
Hernandez has an extensive record of twenty-four institutional infractions of which eight were serious, "asterisk" infractions. N.J.A.C. 10A:4-4.1. His most recent infraction occurred on October 12, 2007.
Hernandez became eligible for parole for the third time on September 3, 2010, after serving fifteen years and one month of his sentence. In determining that there is a substantial likelihood that Hernandez would commit a new crime if released on parole and, therefore, parole should be denied, the Parole Board Panel (Panel) considered the following mitigating factors: Hernandez has been infraction-free since 2007, has participated in institutional programs, has made attempts to enroll and participate in programs, but was not admitted, and has had commutation time restored.
The Panel's reasons for denying parole and adding nine months to the standard FET*fn1 included an increasingly more serious and extensive criminal record. They considered, as well, that Hernandez was incarcerated for multi-crime convictions, neither prior probation nor prior incarceration had deterred his criminal behavior, he had many serious institutional infractions and lacked insight into his behavior. The Panel considered a confidential April 14, 2009 psychological evaluation concluding that Hernandez had psychiatric problems and "a long history of poor impulse control, manipulative behavior and prevarication" and is unlikely to make a successful community adjustment "without considerable supervision." The Panel also considered an April 13, 2010 confidential pre-parole evaluation that indicated Hernandez was a "medium" risk to reoffend.
On appeal to the Board, it considered the information before the Panel, as well as the packet of materials of support from friends and family submitted by Hernandez in mitigation.
In his appeal to this court, Hernandez argues that the Board's decision was arbitrary and capricious and not supported by sufficient credible evidence.*fn2 He argues that he has not committed an institutional infraction since 2007 and that he engaged in past criminal behavior only because he was young and lived in a bad environment. He disputes each negative finding made by the Panel and the Board. 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.
Because Hernandez's crimes were committed between 1994 and 1996, he was entitled to release on parole unless the Board determined by a preponderance of the evidence that there is "a substantial likelihood" that he would commit a crime if released on parole. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 135 (2001); see N.J.S.A. 30:4-123.53(a). The Board must consider all of the pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b).
Our standard of review of administrative decisions of the Board is limited, and "grounded in strong public policy concerns and practical realities." Trantino, supra, 166 N.J. at 200. "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (alteration in original) (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. (citing Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59, certif. denied, 63 N.J. 583 (1973)). Consequently, our courts "may overturn the Parole Board's decisions only if they are arbitrary and capricious." Ibid. "Administrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
Applying these principles to the facts in this case, we find no basis to disturb the Board's final decision.