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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...