RICHARD THOMSON v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2060-04T5

RICHARD THOMSON,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.
_______________________________________

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September 27, 2005

Submitted September 14, 2005 - Decided

Before Judges Stern and Grall.

On appeal from a Final Decision of the
New Jersey State Parole Board.

Richard Thomson, appellant pro se.

Peter C. Harvey, Attorney General,
attorney for respondent (Lewis A.
Scheindlin, Assistant Attorney General,
of counsel; Kimberly A. Sked, Deputy
Attorney General, on the brief).
 
PER CURIAM
 
Richard Thomson, an inmate at South Woods State Prison, appeals from a final decision of the State Parole Board that denied him parole and established a future eligibility term (FET) of fourteen months. We affirm.
On January 2, 2004, Thomson was sentenced to the custody of the Commissioner of the Department of Corrections for an aggregate term of five years. He received concurrent sentences for aggravated assault contrary to N.J.S.A. 2C:12-1b(7), contempt contrary to N.J.S.A. 2C:29-9a, and two charges of simple assault contrary to N.J.S.A. 2C:12-1a(1). See N.J.S.A. 2C:43-10a. Thomson received credit for 249 days of confinement prior to sentencing. All four offenses were committed in 2003 and involved domestic violence and substance abuse.
Thomson is forty-four years of age. Although he has an extensive criminal history that includes convictions for burglary, assault, attempted robbery and attempted burglary, this is his first prison sentence. Thomson was serving a sentence of probation for aggravated assault, two counts of resisting arrest, possession of cocaine, and three counts of simple assault when he committed the offenses that led to this sentence. He has had no disciplinary infractions in prison.
On June 8, 2004, a two-member panel of the Parole Board considered Thomson's parole. He told the members of the panel that he had been "on a very bad run with drinking" when, contrary to a domestic violence restraining order, he went to his "girlfriend's" residence, used duct tape and a sock to restrain and silence her, and punched her about the head and body. While he indicated that he accepted responsibility for his conduct and was ashamed of it, he reiterated that he would not have done these things if he had not been intoxicated.
The two-member panel denied parole based on Thomson's extensive prior record; present incarceration for a multi-crime conviction; prior opportunities for community supervision on probation; insufficient resolution of his problems; his minimization of his conduct; and the fact that he had not yet addressed his substance abuse problems. The panel recommended that Thomson remain in the prison's NuWay Program, receive counseling for substance abuse and participate in a behavior modification program with one-to-one counseling related to domestic violence. The panel subsequently amended its report to include an additional mitigating factor based on Thomson's attempt to enroll and participate in additional programs, a factor the panel had previously overlooked.
Thomson filed an appeal pursuant to N.J.A.C. 10A:71-4.2, and, on October 6, 2004, after review of the recording of the panel hearing, the Board affirmed the panel's decision. The Board rejected Thomson's claim that the panel overlooked his participation in the NuWay Program, noting that the panel suggested that he continue with that program. The Board also found that the panel gave Thomson "ample time and opportunity to ask and answer questions." The Board reasoned in part:
The full Board has determined that the Adult Panel pursuant to N.J.A.C. 10A:71-3.18(f) sufficiently documented the reasons for denial of parole and pursuant to N.J.A.C. 10A:71-3.11 considered and based its decision on the aggregate of all factors.

The full Board found that the Adult Panel appropriately considered that your prior criminal record is extensive and that you are presently incarcerated for a multi-crime conviction. In addition your prior opportunities on probation as well as prior incarcerations [(jail sentences in connection with probation)] have failed to deter your criminal behavior. The Adult Panel also noted your insufficient problem resolution, specifically your lack of insight into your criminal behavior, minimizing your conduct and not sufficiently addressing your substance abuse problem as demonstrated by your Panel interview and documentation in the case file.

The full Board additionally determined that the Adult Panel appropriately considered in mitigation that you are infraction free as well as your participation in institutional programs. Your average to above average institutional reports and your attempt made to enroll and participate in programs without being admitted were also considered.
 
Based on a consideration of the facts cited above, the full Board has determined that the Adult Panel has documented, by a preponderance of evidence, that there is a reasonable expectation that you would violate the conditions of parole if released on parole at this time.

Accordingly, the full Board has elected to affirm the Adult Panel's June 8, 2004 decision to deny parole and establish a fourteen (14) month future parole eligibility term. You will be scheduled for a subsequent parole release hearing when it is appropriate.
 
On appeal Thomson argues that the two-member panel applied the "incorrect criteria" when considering parole release. The argument lacks sufficient merit to warrant extended discussion in a written opinion and the Board's decision is supported by sufficient credible evidence in the record and consistent with controlling legal standards. R. 2:11-3 (e)(1)(D)-(E).
We add a brief explanation for our conclusion. An inmate who is incarcerated based upon conviction of a crime committed after 1997, may be denied parole if "a preponderance of the evidence [before the Board permits the finding that] the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole" if released. N.J.S.A. 30:4-123.53(a). Thomson committed the crimes that led to his incarceration while serving a probationary term that was conditioned upon his abstaining from the use of alcohol and remaining arrest free. He was also subject to a restraining order that prohibited him from having contact with the victim of this aggravated assault, which he attributes to his intoxication. This evidence amply supports the Board's conclusion that it is reasonable to expect that he would violate the conditions of parole if released without additional time to benefit from available programs for substance abuse and behavior modification. Thomson's statement to the two-member panel provided additional support. We conclude that the Board applied the proper legal standard and reached a decision based on findings supported by the record. Bowden v. Bayside State Prison, 268 N.J. Super. 301 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).
In addition, we note that the Board exercised its discretion in favor of Thomson when it set a fourteen-month FET. N.J.A.C. 10A:71-3.21(e). The standard FET applicable to an inmate serving a five-year sentence is twenty months. N.J.A.C. 10A:71-3.21(a)(1).

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Affirmed.

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