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Cales v. New Jersey State Parole Board

Superior Court of New Jersey, Appellate Division

May 31, 2013

RUBEN CALES, Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2013

On appeal from the New Jersey State Parole Board.

Ruben Cales, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

Before Judges Sabatino and Maven.

PER CURIAM

Appellant Ruben Cales appeals the Parole Board's final agency decision dated January 25, 2012, denying him parole and establishing a future eligibility term ("FET") of ninety-six months. We affirm.

In 1998, appellant was convicted for aggravated manslaughter and first-degree armed robbery. The court sentenced appellant to an aggregate term of forty years of imprisonment, with a fifteen-year period of parole ineligibility.

On August 5, 2011, at the initial parole hearing, upon reviewing appellant's parole status, the two-member panel cited appellant's numerous disciplinary infractions, as well as his minimization of his behavior and lack of remorse for the victim, as the reasons for recommending the denial of parole. They also indicated that there was a substantial likelihood that appellant would commit a new crime if he were released at this time. This panel referred appellant's case for a hearing before the three-member review panel of the Board and recommended the imposition of an FET beyond the twenty-seven-month term specified for manslaughter convictions under the administrative guidelines. See N.J.A.C. 10A:71-3.21.

On October 5, 2011, in denying parole, the three-member panel considered the recommendation and additionally noted that appellant had incurred at least seven non-asterisk (less serious) infractions and one asterisk (more serious) infraction, resulting in multiple placements in detention and at least 210 days loss of commutation credits. The Panel was specifically concerned with a 2004 infraction for possession of a razor blade. They noted that appellant's explanation of the incident and insistence that "it wasn't a weapon" was "illustrative of someone who continually attempts to deflect responsibility for [his] actions." The Panel found that this further evidenced "[appellant's] need to minimize [his] anti-social and criminal conduct."

The Panel assessed several mitigating factors, including appellant's participation in multiple prison programs; lack of prior criminal convictions; above-average work and housing reports; and his letters to the Panel and the victim's family expressing remorse and contrition. See N.J.A.C. 10A:71-3.11(b). Nonetheless, in light of these and other considerations, the Panel concluded that appellant continued "to remain a substantial threat to public safety." The Panel established an FET of ninety-six months, stating that any [lesser] term . . . would be wholly inconsistent with the conclusion that, after fourteen . . . years of incarceration, [appellant] ha[s] not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity." See N.J.A.C. 10A:71-3.21(d) (authorizing an extended FET beyond the twenty-seven-month baseline FET).

Appellant administratively appealed that decision, and on January 25, 2012, the full Board sustained both the denial of parole and the ninety-six-month FET. This appeal followed.

Appellant contends that the Board's decision denying parole and establishing a ninety-six-month FET was arbitrary and capricious and not supported by substantial credible evidence. Further, he argues that the length of the FET is capricious given that he has completed all of the prison programs available to him, and as such, there are no additional rehabilitative programs to which he can avail himself that ...


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