January 9, 2013
DENNIS O'BRIEN, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 19, 2012 -
Before Judges Grall, Simonelli and Koblitz.
Dennis O'Brien, an inmate currently residing in Fletcher House, a halfway house, appeals from a final determination of the New Jersey State Parole Board (Board), dated November 30, 2011, which denied his application for parole and established a twenty-month future eligibility term (FET). For the reasons that follow, we affirm.
O'Brien, a disbarred attorney, is presently serving an aggregate term of eighteen years' imprisonment with an eight year period of parole ineligibility for stealing money from older and disabled clients. On April 16, 1999, O'Brien was originally sentenced to probation for three counts of third-degree misappropriation of funds, N.J.S.A. 2C:21-15. He was ordered to pay $338,639.93 in restitution to seven former clients. He continued to steal from his clients while on probation and was therefore convicted of a violation of probation. O'Brien was sentenced to four years in prison on the violation of probation, to run concurrently to the sentence imposed on the two new charges of second-degree theft, N.J.S.A. 2C:20-3(a). On the new charges, he received consecutive sentences of nine years in prison with a four-year parole disqualifier on each count. He was ordered to pay approximately $1,800,000 in restitution to twenty-six former clients.
On March 6, 2005, while incarcerated, O'Brien was found guilty of threatening a corrections officer with bodily harm, which is an asterisk offense, *.005. N.J.A.C. 10A:4-4.1(a) (listing asterisk offenses as the most serious prohibited acts).
Although he admitted the charge at the time, he told the parole panel that he had not committed the infraction.
O'Brien first became eligible for parole on May 1, 2011. Two months before that date, he appeared before a two-member adult panel of the Board. The panel denied parole and established a twenty-month FET.*fn1 In its notice of decision, the panel determined that the facts supported a reasonable expectation that O'Brien would violate the conditions of parole if he were released on parole. The panel noted by way of mitigation that O'Brien had participated in institutional programs; received average to above average institutional reports; had made attempts to enroll and participate in programs but was not admitted; and had achieved and maintained minimum custody status. The panel noted, however, as reasons for denying parole that: an opportunity on community supervision probation had been terminated, including a new arrest and failure to make timely restitution payments; O'Brien committed a serious institutional infraction on March 6, 2005; he had insufficient problem resolution, specifically a lack of insight into criminal behavior and engaged in minimization of his conduct; and O'Brien was the victims' attorney. The panel wrote that "despite being a well-educated individual [O'Brien] preyed on vulnerable victims-even after being given the benefit of probation, he continued w[ith] the same behavior - he shows little remorse towards his victims[;] it seems to be all about him."
O'Brien filed an administrative appeal to the full Board. During the appeal process, the panel reconsidered the case. In reaffirming its initial decision, the panel cited two additional mitigating factors: O'Brien's participation in programs specific to his behavior and that he had commutation time restored. The panel recommended that O'Brien remain in Fletcher House and that he participate in institutional programs geared toward eliminating criminal behavior.
The Board determined that the panel had considered all of the relevant information and fully documented and supported its decision to deny parole. The Board stated that the "Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a reasonable expectation that [O'Brien] would violate the conditions of parole if released on parole at this time." The Board affirmed the panel's decision to deny parole and establish a twenty-month FET.*fn2 This appeal followed.
O'Brien argues that the panel gave insufficient weight to the restitution he made to the victims, his adjustment to the halfway house, his low risk for recidivism reflected in the mental health report received by the panel and the fact that he had only one institutional infraction, which occurred early in his incarceration. He also maintains that the panel should have given greater weight to his statements of remorse at the parole hearing, rather than draw the conclusion that he "exhibit[ed] insufficient problem resolution." Additionally, he claims that the panel should not have revisited the facts underlying his convictions, such as the age and circumstances of his victims or his status as the victims' trusted attorney. O'Brien gave the panel no cogent motive for stealing over two million dollars from more than thirty clients, nor any reason for continuing to steal even after he was caught, convicted and given a chance to reform on probation. In his testimony before the panel, he ignored the disability and dependence of his former clients,*fn3 and maintained that he was motivated by a desire to cover up bad investments and protect his reputation. O'Brien stressed to the panel how helpful he was to the prosecutor and how he sold his assets to make restitution.
The Supreme Court has recognized that the Board's parole determinations "are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Indeed, a parole decision "depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979).
The Board's discretionary authority in the parole process is broad but not unlimited, and the Board's decisions remain subject to judicial review for arbitrariness. Trantino VI, supra, 166 N.J. at 173 (citations omitted). In reviewing a final decision of the Board, we consider: 1) whether the Board's action is consistent with the applicable law; 2) whether there is substantial credible evidence in the record as a whole to support the Board's findings; and 3) whether in applying the law to the facts, the Board erroneously reached a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV).
O'Brien is presently incarcerated for crimes committed between 1999 and 2003. Therefore, the standard that governs O'Brien's application for parole is set forth in N.J.S.A. 30:4-123.53(a), which provides that an "inmate shall be released on parole at the time of [his] parole eligibility, unless" it is determined by a preponderance of the evidence "that there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole[.]" N.J.S.A. 30:4-123.53(a).*fn4
In making this determination, the Board must consider the factors enumerated in N.J.A.C. 10A:71-3.11(b), which include, but are not limited to, the facts and circumstances of the offense; aggravating and mitigating factors concerning the offense; commission of serious disciplinary infractions; adjustment to previous probation; statements of the inmate reflecting on whether there is a likelihood the inmate will commit another crime; and participation in institutional programs. N.J.A.C. 10A:71-3.11(b).
Here, the Board properly considered the relevant factors in N.J.A.C. 10A:71-3.11(b) in denying parole. The Board found that there is a reasonable expectation that O'Brien will violate the conditions of parole if he is released. N.J.S.A. 30:4-123.53(a). The Board based its decision on factors spelled out in the Administrative Code and fully supported by the record before it. We are satisfied that the Board's decision to deny parole is fully supported by substantial credible evidence in the record and is not arbitrary.