CARLOS FERNANDEZ 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NOT FOR PUBLICATION WITHOUT THE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-5517-04T35517-04T3

CARLOS FERNANDEZ,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

 

Submitted April 5, 2006 - Decided April 20, 2006

Before Judges Weissbard and Winkelstein.

On appeal from a final decision of the New Jersey State Parole Board.

Carlos Fernandez, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Carlos Fernandez is serving a ten-year sentence at Riverfront State Prison in Camden for possession of a controlled dangerous substance with the intent to distribute. He appeals from a May 4, 2005 decision of the New Jersey State Parole Board that denied his request for parole and adopted a two-member panel's decision to establish a fourteen-month future eligibility term. On appeal, appellant raises the following legal point:

POINT I: THE DECISION OF THE ADULT PAROLE BOARD SHOULD BE REVERSED BECAUSE THEY FAIL TO CONSIDER RELEVANT FACTS DURING THE APPELLANT'S HEARING.

a. The board failed to consider material facts that are relevant to the appellant's case by failing to establish the preponderance of evidence standard indicating that a substantial likelihood that the inmate will commit a crime if released on parole.

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) (Trantino II). The test for eligibility for parole is whether there is a "reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time." N.J.S.A. 30:4-123.53.

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). If so, unless the Parole Board went "'so far wide of the mark that a mistake must have been made[,]'" its decision must not be disturbed. N.J. Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988).

Applying this test here, we find no basis to disturb the Parole Board's decision. While imposing a fourteen-month future eligibility term, the two-member panel considered a number of mitigating factors: appellant had been infraction-free, he participated in various programs, he received average to above-average institutional reports, and he attempted to enroll and participate in other programs but was not admitted. Nevertheless, the panel found he had not benefited from prior opportunities on probation; his three prior indictable convictions had not deterred him; he minimized his conduct; and he lacked insight into his criminal behavior.

The Parole Board's May 4, 2005 determination, which adopted the two-member panel's findings, that "there is a reasonable expectation that [appellant] would violate the conditions of parole if released on parole," was supported by the substantial evidence in the record. Appellant's arguments to the contrary are without sufficient merit to warrant additional discussion. See R. 2:11-3(e)(1)(D)&(E). We affirm substantially for the reasons set forth by the Parole Board.

Affirmed.

 

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A-5517-04T3

April 20, 2006