July 24, 2012
JAMES CAESAR, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board. James Caesar, appellant pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 11, 2012 -
Before Judges Espinosa and Koblitz.
James Caesar is serving an aggregate sentence of life imprisonment with a mandatory minimum term of twenty-eight years and six months, for convictions of murder, three counts of armed robbery and aggravated assault. He appeals from a February 23, 2011 final agency decision of the New Jersey State Parole Board (Board) denying him parole and establishing a 240 month future parole eligibility term (FET). At the Board's request, we remanded for a recalculation of the length of the FET. The only issue before us is whether the Board's decision to deny Caesar parole is supported by sufficient credible evidence. We affirm.
The Board noted that Caesar has an extensive criminal record. He was placed on probation once as a juvenile. As an adult, prior to 1975, he was convicted in separate incidents of marijuana use, possessing stolen property and shoplifting, and was twice convicted of both using heroin*fn1 and larceny. He served six county jail sentences and an indeterminate sentence to the Youth Correctional Institution Complex (YCIC). He was convicted of violating parole in connection with his first sentence to YCIC.
On November 7, 1975, he was paroled on a second indeterminate term he received in June 1975 for armed robbery and breaking and entry. On November 22, 1975, he and three other men, all wearing ski masks and armed with sawed-off shotguns, robbed patrons of a social club in Passaic. He subsequently pled guilty to three counts of armed robbery and was sentenced to an aggregate term of twelve to fourteen years in prison, concurrent to any parole violation.
On December 6, 1979, while an inmate at Marlboro State Hospital, he stabbed another inmate with a knife. He pled guilty to aggravated assault and was sentenced to a consecutive term of seven years, with a mandatory-minimum term of three years and six months.
On March 14, 1981, while incarcerated at New Jersey State Prison, Caesar and another inmate stabbed a third inmate to death. Caesar was found guilty of murder and sentenced to a consecutive term of life imprisonment, with a mandatory-minimum term of twenty-five years.
Caesar has an extensive record of twenty-one institutional infractions, of which fifteen were serious, "asterisk" infractions. N.J.A.C. 10A:4-4.1. His most recent infraction occurred on November 12, 1997.
Caesar became eligible for parole for the first time on April 11, 2009, after serving approximately thirty-three years of his sentence. In determining that there is a substantial likelihood that Caesar 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: Caesar has participated in institutional programs, including programs specific to behavior; has average to above average institutional reports; has made attempts to enroll and participate in programs, but was not admitted; has achieved minimum custody status and has had commutation time restored.
The Panel's reasons for denying parole included an extensive and increasingly more serious criminal record. They considered, as well, that Caesar was incarcerated for multi-crime convictions, his criminal behavior had not been deterred by prior probation, parole, or incarceration, he had committed a crime while incarcerated and had many other serious institutional infractions, and he lacked insight into his behavior. The Panel considered a confidential August 28, 2009 psychological evaluation that concluded Caesar was a medium risk to reoffend, his likelihood of a successful completion of parole was below average and the risk of future violence was medium to high. The Board affirmed the Panel decision to deny parole.
Caesar argues on appeal that the Board acted arbitrarily by focusing on the past and failing to consider his current circumstances. He notes that he has been free of institutional charges since 1997 and argues that his score of 28 on the standardized Level of Service Inventory-Revised (LSI-R) test used by the Department of Corrections "means there is about a 57% probability that he will not commit a crime upon release."*fn2
Because Caesar's crimes were committed between 1975 and 1981, 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, 126 (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) (quoting 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. 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.