JAMES ALLAN 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NOT FOR PUBLICATION WITHOUT THE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-2006-04T32006-04T3

JAMES ALLAN,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent-Respondent.

____________________________________________________________

 

Submitted December 21, 2005 - Decided January 19, 2006

Before Judges Wefing and Graves.

On appeal from a Final Decision of the

New Jersey State Parole Board.

James Allan, 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

James Allan, an inmate at Bayside State Prison, appeals from a Final Decision of the State Parole Board (the Board) that denied him parole and established a future eligibility term (FET) of twenty-four months. We affirm.

Following a jury trial, Allan was sentenced on July 12, 2002, to a ten-year prison term with a four-year period of parole ineligibility for second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4(a). He was also sentenced to concurrent prison terms for various other convictions including criminal restraint, terroristic threats, and violation of a domestic violence restraining order. Allan was forty-one years old when he was sentenced. In a statement of reasons attached to the judgment of conviction, the trial court summarized the pertinent facts as follows:

Before the Court is James Allan having been found guilty after jury trial of violation of a restraining order, 4th degree, criminal restraint, 3rd degree, terroristic threats, 3rd degree, harassment, a PDP and possession of a sawed off shotgun 3rd degree and possession of that sawed off shot gun for an unlawful purpose, 2nd degree which carries a mandated imprisonment and a period of parole ineligibility under the Graves Act of not less than three (3) years.

While Mr. Allan has no prior criminal history, mitigating factor 7, that factor lacks substantial weight in a domestic violence situation where often a prior criminal history is not present, but a prior abusive history is prevalent.

These offenses were grounded in the continuing mental health, bi-polar and/or mixed personality disorder and depression of the defendant which compounded his obsession with the victim, Ms. Gazda. He is in need of psychiatric treatment and to this day has little insight or understanding of the effect of these crimes. It however, does not excuse his conduct. There is no excuse, and his psychiatric issues did not [affect] his thought process or conduct.

The victim, Linda Gazda, remains in constant fear of the defendant and psychological evaluations indicate he is a clear danger to Ms. Gazda.

The evidence showed that he was involved in a romantic relationship with Ms. Gazda. He was obsessive in his behavior which culminated in an argument, threats and abuse on May 30, 2000 and Ms. Gazda obtained

a temporary restraining order. As a result, Mr. Allan despondent over business losses coupled with the break up attempted suicide and was taken to Overlook Hospital. The restraining order was finalized on June 8, 2000 and on June 9, 2000, released from the hospital, he violated same.

Ms. Gazda was in an A & P parking lot with her mother returning to her car with groceries. Unknown to her, Mr. Allan had parked his truck on the other side of the lot and approached her while she was opening the car door, indicating that he had a gun. In fact, he had earlier obtained a shotgun from a friend which he sawed off and placed in a bag in approaching Ms. Gazda. She was then criminally restrained in the car wherein Mr. Allan drove off with her, leaving her mother stranded. This led to [a] 4/5 day odyssey in which Mr. Allan with Ms. Gazda drove to New York, across to Chicago and into Des Moines, Iowa. He had discarded the shotgun in New York and approached [lawyer], Johnnie Cochran in Iowa about the warrant for his arrest which had resulted from his actions. With the lawyer['s advice], they went to Des Moines police which culminated in his arrest and Ms. Gazda returning home.

Ms. Gazda's testimony showed that she was never a willing participant and was in constant fear of her life. The jury determined that he was not guilty of kidnapping, carjacking, stalking, aggravated assault and a loaded shotgun. However, the jury did find that he violated the restraining order and this is clear from his contact in the A & P lot. They also found him guilty of criminal restraint. They determined that Mr. Allan knowingly restrained Ms. Gazda and that he knew it was unlawful and that the restraint was under circumstances in which he knowingly exposed her to the risk of serious bodily injury. He took her from the A & P with her mother stranded and with a sawed off shotgun. The risk was evident, as was the fear of Ms. Gazda. She knew his traits and had obtained a restraining order and there by surprise, he appears with a sawed off shotgun.

Further, the jury found him guilty of terroristic threats in threatening a crime of violence with a purpose to terrorize her or in reckless disregard of the risk of causing such terror. His actions in this regard speak for themselves . . . in telling [Ms. Gazda] to "get in the car, I have a gun" and restraining her. The jury found he possessed this sawed off shot gun and did so with an unlawful purpose as indicated rejecting that he had the weapon only to harm himself.

The nature of these crimes and the stated manner in which they were committed shows that aggravating factors 1 (nature of offense) and 2 (gravity of harm) apply. Mr. Allan carried out these crimes in broad daylight, with surprise, and across many states with a victim vulnerable and in fear over days. The psychological harm to Ms. Gazda will forever scar her.

These multiple offenses coupled with his obsession with the victim show he is a risk of reoffense, aggravating factor 3 and the need to deter domestic violence upon women, as Ms. Gazda, is overriding aggravating factor 9 and our society has recognized the importance of this issue in legislative mandates, training and counseling. Against these factors the only mitigation is the lack of any criminal history for Mr. Allan. However, as stated in domestic violence where an abusive history is prevalent, the lack of criminal history has little weight. Here, testimony showed that Mr. Allan had prior abuse towards Ms. Gazda and he had a history of domestic violence. His former wife and one of his own sisters have domestic violence orders against him.

When Allan was sentenced, he received 752 days of credit for time spent in custody (R. 3:21-8), and he became eligible for parole on June 19, 2004. At Allan's initial parole hearing on January 6, 2004, hearing officer, Lewis Mehlinger, recommended parole subject to final review by a Board Member. This recommendation was reviewed on March 24, 2004, and a determination was made to refer Allan's case for a hearing.

On April 1, 2004, Allan appeared before a two-member panel for his parole hearing, and a transcript of the hearing has been included in the Board's appendix. After considering Allan's case, the parole panel denied parole and established a twenty-four-month FET. The two-member panel based its decision on the following factors: nature of crime very serious; presently incarcerated for a multi-crime conviction; and insufficient problem resolution, including lack of insight into criminal behavior, minimization of conduct, and insufficient addressing of a substance abuse problem, as demonstrated by the panel interview, documentation in the case file, and confidential material/professional reports. The panel also noted, as mitigating factors: Allan had no prior criminal record, and he had remained infraction-free, he had participated in programs specific to behavior, he had average to above average institutional reports, he had attempted to enroll and participate in programs but was not admitted, and he had achieved minimum custody status.

On May 17, 2004, Allan administratively appealed the two-member panel's decision to the full Board. On September 22, 2004, the Board affirmed the decision of the two-member panel. The Board also amended the panel decision by deleting "nature of crime very serious." The Board rejected Allan's claim that the panel's decision was arbitrary and capricious:

In regard to your claim that the Panel's decision was both arbitrary and capricious, the Courts have defined that an arbitrary and [capricious] action is one which is willful and unreasoning, without consideration and is in disregard of circumstances. The Board has determined that your appeal contained no evidence to support that this is the case regarding the Panel's determination.

In regard to your contention that the Panel's decision lacked the support of credible evidence, the Board has concluded that the Panel's Notice of Decision, pursuant to N.J.A.C. 10A:71-3.18(f) appropriately documented the reasons for its decision. The Board has found that the Panel, pursuant to N.J.A.C. 10A:71-3.11 appropriately considered and based its decision on the aggregate of all pertinent factors in your client's case. The Board has determined that the Panel appropriately noted the following mitigating factors in your client's case: no prior criminal record, infraction free, participation in programs specific to behavior, participation in institutional programs, average to above average institutional programs, attempt made to enroll and participate in programs but was not admitted and minimum custody status achieved/maintained. Furthermore, the Board has determined that the Panel appropriately cited the following factors as reasons for denial: presently incarcerated for multi crime conviction and as demonstrated by your client's Panel interview, in documentation contained in the case file and confidential material/professional report relied on, that your client lacks insight into his criminal behavior, minimized his conduct and has yet to sufficiently address his substance abuse problem.

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 your client would violate the conditions of parole if released on parole. Accordingly, the full Board has elected to affirm the Adult Board Panel's April 1, 2004 decision to deny parole and establish a twenty-four (24) month future parole eligibility term.

Parole Board determinations are not to be reversed unless they are arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). Because Allan's offenses were committed after August 19, 1997, he must be released on parole unless the information developed or produced at his parole hearing indicates by a preponderance of the evidence 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).

A court reviewing the decision of a state agency, such as the Parole Board, must examine the record and determine whether the agency's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The Parole Board's decision will only be set aside "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of the State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).

 
Applying this test to the facts in this case, we find no basis to disturb the Board's final decision. While acknowledging Allan's participation in certain programs, the Board determined that the issues that caused his criminal behavior still existed. The Board was concerned about his lack of insight into his criminal behavior, minimization of his unlawful conduct, and his failure to sufficiently address a substance abuse problem. The Board considered Allan's mitigating factors, but nevertheless, denied parole based on a reasonable expectation that Allan would commit another crime if released on parole. That decision and the decision to establish a twenty-four-month FET was supported by substantial credible evidence in the record. Allan's arguments to the contrary are without merit. See R. 2:11-3(e)(1)(D) & (E). We therefore affirm substantially for the reasons set forth by the Board.

Affirmed.

(continued)

(continued)

9

A-2006-04T3

January 19, 2006