HUGO HIDALGO 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NOT FOR PUBLICATION WITHOUT THE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-1605-05T11605-05T1

HUGO HIDALGO,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

__________________________________________________

 

Submitted June 26, 2006 - Decided July 24, 2006

Before Judges Collester and Weissbard.

On appeal from a decision of the New

Jersey State Parole Board.

Hugo Hidalgo, appellant pro se.

Zulima V. Farber, Attorney General, attorney

for respondent State Parole Board (Patrick DeAlmeida, Assistant Attorney General, of counsel; Walter C.

Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Hugo Hidalgo, an inmate at Bayside State Prison, appeals from a final agency decision of the State Parole Board (the Board) denying him parole and establishing a fourteen-month future eligibility term (FET). We affirm.

Hidalgo is serving a sentence of five years with two and one-half years of parole ineligibility, imposed on April 16, 2004 on his guilty pleas to terroristic threats arising out of an incident on March 29, 2003, and aggravated assault, possession of a weapon for an unlawful purpose and possession of a controlled substance with intent to distribute within 1000 feet of school property, arising from an incident on May 12, 2003. Hidalgo became eligible for parole on November 9, 2005. In advance of that date, his case was referred to a two-member panel of the Board who, on June 17, 2005, denied parole and fixed a fourteen-month FET. On September 21, 2005, the full Board denied Hidalgo's appeal and adopted the two member panel's recommendation, stating in pertinent part:

You contend that the Panel failed to document that there is a reasonable expectation that you would violate the conditions of parole if released on parole at this time. You state that the mitigating factors substantially outweigh the Panel's decision to deny parole. You also state that the Panel is biased with its own prejudices when it comes to dealing with minorities and immigrants. You are requesting to be deported back to the Dominican Republic. You state that it would be more financially advantageous for the state to release you to your detainer.

The issues you submitted were presented to the full Board at its meeting, conducted on September 21, 2005. During the consideration of your claims, the full Board determined that the Panel appropriately considered the aggregate of all relevant material facts pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported their reasons for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). A review of the Notice of Decision indicates that the Panel considered in mitigation your prior criminal record, your participation in programs specific to behavior, participation in institutional programs, attempt to enroll and participate in programs was not admitted, and your positive Panel interview is noted. However, the Panel also considered your current multi crime conviction, and the risk assessment evaluation. As a result of your Panel interview and documentation in the case file, it was determined that your substance abuse problem has not been sufficiently addressed.

In regards to your contention that your mitigating factors outweigh the reasons for denial, pursuant to N.J.A.C. 10A:71-3.11 the Adult Panel is required to consider and base its decision on the aggregate of all factors. Therefore, both the mitigating factors and the reasons for denial were fully considered. Your contention in regards to the Panel members demonstrating bias and prejudice is without merit due to the lack of evidence to support this.

Furthermore, your contention in reference to the cost savings to the State if you were paroled to your detainer, the Board found that the cost of your incarceration is not relevant to the consideration of your fitness for release on parole.

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.

On appeal Hidalgo presents the following argument:

POINT ONE

THE DENIAL OF APPELLANT'S PAROLE WAS NOT BASED UPON ANY SOUND FINDINGS THAT MR. HIDALGO WOULD VIOLATE ANY OF THE NEW JERSEY STATE PAROLE BOARD'S CONDICTIONS [sic] OF RELEASE, NOR WAS THERE ANY SOUND EVIDENCE THAT HE DID NOT PARTICIPATE IN HIS OWN REHIBILITATION. [sic]

Our scope of review of Parole Board decisions is limited:

In addressing the validity of the parole board's denial of parole, the judicial role concentrates on three inquiries: (1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV) (citation omitted).]

We have thoroughly reviewed Hidalgo's argument in light of the record, including the confidential appendix, and applicable law. Having done so, we find his argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). See Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI); Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359, 368 (1973); Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). We affirm substantially for the reasons set forth in the Board's letter decision of September 21, 2005 affirming the June 17, 2005 decision of the two-member panel.

Affirmed.

 

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A-1605-05T1

July 24, 2006