NICHOLAS GALLICCHIO 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NOT FOR PUBLICATION WITHOUT THE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-2168-04T12168-04T1

NICHOLAS GALLICCHIO,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent-Respondent.

 

Submitted September 13, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the New Jersey State Parole Board.

Nicholas Gallicchio, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

Nicholas Gallicchio is a state prison inmate who was convicted of first-degree racketeering, N.J.S.A. 2C:41-2c, :2-6, and second-degree theft by extortion, N.J.S.A. 2C:20-5, :2-6, in December 1993. He was sentenced to an extended term, see N.J.S.A. 2C:44-3, of fifty years for the first-degree offense and a concurrent term of seven years for the second-degree offense.

Gallicchio was first considered for parole in October 2002, at which time he appeared before a two-member panel of the Parole Board. Following the hearing and the consideration of the evidence, that panel denied parole and established a thirty-six-month future eligibility term (FET). The panel expressed ten reasons as the basis for its decision to deny parole, finding only one mitigating factor, namely Gallicchio's participation in institutional programs, based on the record then before it for review. The panel suggested that he participate in additional institutional programs, that he engage in a behavior modification program and that he pursue one to one counseling. In December 2002, Gallicchio appealed that decision to the full Parole Board, which affirmed the decision of the panel on February 26, 2003. This court affirmed the decision of the full Parole Board in an unpublished opinion, see Gallicchio v. New Jersey State Parole Board, No. A-4222-02T3 (Apr. 27, 2004), and Gallicchio's petition for certification was thereafter denied. Gallicchio v. New Jersey State Parole Board, 182 N.J. 427 (2005).

Gallicchio was next considered for parole on June 22, 2004, when a Parole Board hearing officer conducted a parole hearing and referred the matter to a two-member panel for its consideration. On June 24, 2004, the two-member panel again denied parole and established a twenty-seven-month FET. Gallicchio appealed that decision to the full Parole Board which affirmed the decision of the two-member panel to deny parole and to establish the twenty-seven-month FET in its written opinion of October 20, 2004.

Gallicchio raises the following argument for our consideration on appeal:

THE PAROLE BOARD MISAPPLIED THE STANDARDS AND RENDERED AN ARBITRARY AND CAPRICIOUS DECISION IN DENYING THE APPELLANT PAROLE AND ESTABLISHING A FUTURE ELIGIBILITY TERM OF TWENTY-SEVEN (27) MONTHS.

We have considered this argument in light of the record and the applicable legal precedents, and we affirm. Our review of the Parole Board's decision is limited. Parole Board determinations are "highly individualized discretionary appraisals," and the decision concerning an inmate's suitability for parole under this standard should not be reversed by a court unless it is found to be arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998)(Trantino IV). We further recognize that whether there is a substantial likelihood that an inmate would commit another crime if released is essentially a factual determination, and judicial review is limited to determining whether the Parole Board's "factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 24 (quoting State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)). Moreover, the standard for parole release "requires that it be demonstrated that the inmate has attained a level of rehabilitation that can assure there is no likelihood that he or she will engage in criminal conduct if released on parole." Trantino IV, supra, 154 N.J. at 44.

Gallicchio's appeal centers on two arguments. First, he asserts that, as a matter of law, the Parole Board was not permitted to deny him parole in the absence of new information that was developed following the first decision denying him parole. See N.J.S.A. 30:4-123.53a, -123.56c; Trantino v. N.J. State Parole Bd., 331 N.J. Super. 577, 607-08 (App. Div. 2000)(Trantino V), aff'd in part and modified in part, 166 N.J. 113 (2001)(Trantino VI). Specifically, Gallicchio compares the reasons expressed by the Parole Board for its denial of parole at his October 2002 hearing with those expressed at the hearing now before us on appeal. He asserts that the two sets of reasons are essentially the same. He then points out that he had applied for institutional programs, as the Parole Board had earlier suggested, and had not been charged with any disciplinary infractions in the time after the first denial of parole. Based on these facts, he asserts that he was entitled to be released on parole as there was no new information to support a second denial of parole.

Our review of the applicable legal precedents compels us to reject Gallicchio's first argument as entirely misplaced. To begin, his assertion that the 1997 amendments to the Parole Act deleting the reference to "new" information as a basis for a parole decision do not apply to him in light of the date of his conviction, is based on language from Trantino V that addressed an entirely different aspect of the 1997 amendments. See Trantino V, supra, 331 N.J. Super. at 604-05.

Indeed, there is no support in Trantino V for Gallicchio's argument that the Parole Board was prohibited from denying parole in the absence of entirely new information tending to independently support that decision. On the contrary, we rejected this argument in Trantino V, supra, 331 N.J. Super. at 610-11, where we held that the 1997 amendment deleting the reference to "new" information was a procedural rather than a substantive modification to the statute, id. at 610 (citing State v. Muhammad, 145 N.J. 23, 56-57 (1996); California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995)), and that the Parole Board's utilization of the amended standards did not violate the ex post facto clause. Id. at 610-11. We find no ground on which to apply a contrary analysis to Gallicchio's first argument here.

Gallicchio's second argument is that, as a matter of fact, the Parole Board erred in its evaluation of numerous mitigating factors. In particular, he contends that the Parole Board failed to recognize that he had followed its suggestion, made in its first denial of parole, that he participate in programs, and he argues that the Parole Board failed to consider his advanced age in violation of the directives of our Supreme Court. See Trantino IV, supra, 154 N.J. at 39. We reject this argument as being without merit. R. 2:11-3(e)(1)(E).

Gallicchio, contrary to his assertion on appeal, did not participate in programs as suggested in the October 2002 decision denying parole. At most, he applied for behavior modification and counseling programs and was included on a waiting list for participation when an opening was available. The Parole Board appropriately considered his effort to participate as a mitigating factor in reaching its decision. Nor do we find any error in the Parole Board's rejection of Gallicchio's age as a mitigating factor, under the circumstances revealed in this record. Unlike the facts of Trantino IV on which he relies, Gallicchio was already a relatively older man when he committed the crimes for which he was sentenced. His extensive criminal record, which spanned many years, supports the conclusion that his advanced age alone was not a relevant mitigating factor.

After analyzing the record in the light of the arguments advanced, we affirm. The Parole Board employed the appropriate legal standards and its decision is supported by substantial, credible evidence contained in the record. See Trantino IV, supra, 154 N.J. at 24-25; Monks v. State Parole Bd., 58 N.J. 238, 242 (1971); Cestari, supra, 224 N.J. Super. at 547.

 
Affirmed.

(continued)

(continued)

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A-2168-04T1

September 28, 2005