September 21, 2012
PHILLIP MARRERO, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 4, 2012
Before Judges Alvarez and Nugent.
Phillip Marrero appeals from the April 27, 2011 final decision of the New Jersey State Parole Board (Board) affirming the three-member panel's decision denying his application for parole.*fn1 On September 9, 1988, Marrero had been sentenced on three separate charges of first-degree robbery, N.J.S.A. 2C:15-1, in accord with a plea agreement, as an extended-term persistent offender, N.J.S.A. 2C:44-3(a), to a term of sixty years imprisonment subject to twenty years parole ineligibility, and two concurrent twenty-year ordinary terms of imprisonment subject to ten years of parole ineligibility.
Marrero became eligible for parole on a second occasion on April 11, 2010, having served twenty-two years and six months of his sentence. The hearing officer referred the matter to a Board panel pursuant to N.J.A.C. 10A:71.3.15(b).*fn2 The two-member panel denied Marrero parole after determining that "a substantial likelihood exist[ed] that [Marrero] would commit a new offense if released on parole at this time."
The panel acknowledged the mitigating factors, that Marrero participated in institutional programs, received average to above-average institutional reports, and had commutation time restored. But the panel focused on his failure to address "serious substance abuse issues" and continued abuse of drugs while incarcerated, in addition to multiple institutional disciplinary infractions. The last such infraction occurred some scant ten months before this parole status review. In the panel's opinion, these serious substance abuse issues contributed to Marrero's "violent aggressive behavior."
On May 13, 2010, when the two-member panel denied release, the matter was referred to a third Board member. The three-member panel denied parole for essentially the same reasons.
Marrero appealed to the full Board, which affirmed on April 27, 2011. That final agency decision also noted that Marrero had committed five institutional infractions between this parole review hearing and the first.
Before us, Marrero argues:
The parole Board's decision to deny parole and assign a 120 month future PED was arbitrary and capricious and not based on a preponderance of evidence in the record that a substantial likelihood exists that Marrero will commit a crime if released on parole.
The Parole Board did not give full weight and consideration to the many mitigating factors weighing in Marrero's favor.*fn3
We have considered the arguments in light of the record and applicable legal standards, and now affirm.
Parole determinations require "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino I) (citation omitted). Nonetheless, we review parole decisions as we do those of other administrative agencies, despite the Board's broad discretion, to assess whether the Board has exercised its power arbitrarily or capriciously. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172-73 (2001) (Trantino II). In making that determination, we ask:
(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 action; 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 I, supra, 154 N.J. at 24.]
"A court may not substitute its judgment for that of the agency." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). As a result, we accord the Board's decision a presumption of validity, and the burden is on the challenging party 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).
"In the case of an inmate serving a sentence for an offense committed prior to August 19, 1997, the Board panel shall determine whether . . . by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime under the laws of the State of New Jersey if released on parole." N.J.A.C. 10A:71-3.10(a). N.J.A.C. 10A:71-3.11(b) contains a non-exhaustive list of factors to be evaluated including: the inmate's disciplinary infractions, the facts and circumstances of the offense, the inmate's participation in institutional programs, and "[s]tatements by the inmate reflecting on the likelihood that he or she will commit another crime . . . ." "[T]he Board [must] focus its attention squarely on the likelihood of recidivism." McGowan, supra, 347 N.J. Super. at 565.
Marrero contends that the Board's decision was not based on a preponderance of the evidence in the record, and that the Board "did not give full weight and consideration to the many mitigating factors weighing in [his] favor." That claim is not supported by the record. The Board actually enumerated the mitigating factors in its written decision.
But those factors were found to be less consequential than Marrero's "extensive and repetitive" prior criminal history. That history included convictions for robberies, escape, weapons possession, burglary, grand larceny, assault, resisting arrest, possession of illegal drugs, and attempted homicide. The Board also took into account Marrero's five institutional disciplinary infractions between his first and this parole status review. Marrero's most recent infraction was for misuse of authorized medication, *.205, and was committed on July 7, 2009, some ten months prior to his second parole application. The Board also relied on Marrero's minimization of his most recent offenses. Based on these factors, and in reliance on the three-member panel's findings, the Board affirmed.
We consider the Board's decision to have been reasonable, not arbitrary or capricious, and based upon substantial evidence in the record. The Board included all the relevant factors in reaching its conclusion. Thus we affirm the Board's decision that parole should be denied because of Marrero's likelihood of recidivism. Applying our limited standard of review, we find no basis to disturb the Board's determination.