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Stephen Perry v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2013

STEPHEN PERRY, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from the New Jersey State Parole Board.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 14, 2013

Before Judges Parrillo and Fasciale.

Stephen Perry appeals from a May 25, 2011 final agency decision by the New Jersey State Parole Board (Board) denying his second request for parole and imposing a thirty-six-month period of future eligibility term (FET). We affirm.

Perry is an inmate at Northern State Prison and is serving a life sentence for murder. In January 1979, while committing an armed burglary, Perry fired three shots at two police officers, hitting one in the wrist and chest. When hospitalized for his own injuries sustained in the attack, Perry lured a Sheriff's Officer into the bathroom, assaulted him with an IV pole, grabbed his gun from his holster, and shot the officer in the heart, killing him, in an attempt to escape from custody. Perry had an extensive criminal history before these January 1979 offenses.

Since his last Board hearing in June 2001, Perry committed nine infractions, bringing his total number of institutional violations to fifty-one. This includes a drug-related crime committed in June 2001 of distributing heroin to a fellow prisoner, for which Perry pled guilty in September 2003 and was sentenced to a four-year term with a mandatory minimum of one-year, to run consecutive to the sentence he was presently serving.

In 2010, Perry became eligible for parole for the second time. A Hearing Officer (HO) conducted an initial hearing and then referred the matter to a two-member panel, which considered his case, denied parole, and established a thirty-six-month FET. In November 2010, Perry appealed to the full Board. In its final four-page written decision on May 25, 2011, the Board determined that "there is a reasonable expectation that [Perry] will violate conditions of parole if released," affirmed the two-member panel, and imposed a thirty-six-month FET. The Board upheld the panel's decision. This appeal followed.

On appeal, Perry raises the following points:

POINT I

APPELLANT SHOULD BE GRANTED LEAVE TO PROCEED OUT OF TIME AND AS AN INDIGENT ON APPEAL OF THE DENIAL OF PAROLE RELEASE SINCE THE DECISION BLATANTLY VIOLATES CONSTITUTIONAL PRINCIPLES PREVIOUSLY RULED UPON IN CONTROLLING DECISIONS.

POINT II THE COMMUTATION CREDITS NOT AWARDED APPELLANT BY THE AGENCY VIOLATE A LIBERTY INTEREST, AND SHOULD THE COURT NOT REVERSE THE SUBSTANTIVE MERITS OF THE DENIAL OF RELEASE ON SUMMARY DISPOSITION, THE PROPER CREDITS MUST BE AWARDED.

POINT III APPELLANT SHOULD BE GRANTED ASSIGNMENT OF COUNSEL RELATIVE TO HIS STATUS AS A PRISONER BECAUSE OF THE COMPLEXITY AND IMPORTANCE OF THE MATTER.

POINT IV ALTERNATIVELY, THE COURT SHOULD GRANT SUMMARY DISPOSITION TO APPELLANT SINCE THE AGENCY HAS A DOCUMENTED HISTORY OF CONTINUALLY AND EGREGIOUSLY VIOLATING CONTROLLING DECISION RESULTANT IN PROTRACTED LITIGATION AND INCARCERATION UNTIL JUDICIAL INTERVENTION ORDERING RELEASE OCCURS.

POINT V AS A SECOND ALTERNATIVE, INVOCATION OF R. 2:6-11(c) MUST BE HAD TO PROVIDE MINIMAL

CONSTITUTIONAL DUE PROCESS TO APPELLANT AS IF THE CREDIT AWARD ALLOCATION RESOLUTION IS FAVORABLE TO HIM, IT WILL BE MOOTED BY NORMAL SCHEDULING AND DILATORY TACTICS OF RESPONDENT.

Our standard of review of administrative decisions of the Parole Board is limited, and it "is grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (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, we may reverse the Parole Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)).

Applying that deferential standard of review, we find no basis to disturb the Board's decision in this case. We affirm substantially for the reasons that the Board expressed in its May 25, 2011 final decision. We add the following comments.

The Board's decision to deny parole is not arbitrary and capricious. Instead, the Board assessed all relevant factors, see N.J.A.C. 10A:71-3.11, and arrived at a decision that is supported by ample evidence, including, but not limited to, the facts that Perry is serving consecutive sentences for several crimes; has a significant prior criminal history; has committed numerous institutional violations, including drug-related offenses in October 2007; has exhibited insufficient problem resolution; and lacks insight into his criminal behavior. Perry has failed at community supervision and has not shown remorse for the victims or responsibility for his acts.

We are equally satisfied that the imposition of a thirty-six-month FET was supported by substantial credible evidence in the record. And we reject Perry's contention that the FET should be reduced by commutation, work, and minimum custody credits. Although his sentence includes pre-1997 offenses, Perry's most recent sentence was for his 2001 drug crime. Thus, he is not entitled to reductions for "commutation credits . . . and credits for diligent application to work and other assignments earned." N.J.A.C. 10A:71-3.2(i); see also N.J.S.A. 30:4-123.56(b).

Finally, we are satisfied that the minimal constitutional requirements of due process were fulfilled in this case. See Morrissey v. Brewer, 408 U.S. 471, 485-89, 92 S. Ct. 2593, 2602-2605, 33 L. Ed. 2d 484, 497-499 (1972). We have carefully reviewed the record and conclude that Perry's remaining arguments do not warrant extensive discussion in a written opinion of this court. R. 2:11-3(e)(1)(D), -3(e)(2).

Affirmed.

20130123

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