STEVEN RUSSO 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NOT FOR PUBLICATION WITHOUT THE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-6611-04T56611-04T5

STEVEN RUSSO,

Petitioner-Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent-Respondent.

________________________________

 

Submitted: July 5, 2006 - Decided July 26, 2006

Before Judges Lefelt and Axelrad.

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

Steven Russo, 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 Steven Russo appeals from a final agency decision of the New Jersey State Parole Board (Board) calculating his parole eligibility date. We affirm.

On July 27, 1998, Russo was sentenced to an aggregate ten-year custodial term with an 85% period of parole ineligibility under the No Early Release Act (NERA) for seven counts of aggravated assault, two counts of resisting arrest and one count of possession, use or being under the influence of a controlled dangerous substance (Indictment 4112-10-97). On that date he was also sentenced to a ten-year custodial term with an 85% NERA parole disqualifier for eluding police and a six-year term with a three-year mandatory minimum for the manufacture, distribution or dispensing of a controlled dangerous substance (Indictment 4143-10-97). These sentences were to run consecutive to Indictment 4112-10-97 and concurrent to each other.

On March 24, 2000, apparently pursuant to our remand, an amended judgment of conviction was issued on Indictment 4143-10-97, removing the 85% NERA parole ineligibility term on the ten-year sentence for eluding police. The sentence on the drug offense remained unchanged; thus, the aggregate term on the second indictment was ten years with a three-year period of parole ineligibility.

At some point appellant filed an administrative appeal with the Board, claiming his parole eligibility term was improperly re-calculated from February 19, 2006 to February l7, 2009. He contended the erroneous calculation caused him to be removed from the minimum units at Northern State Prison and to be denied participation in community release programs. As paraphrased by Edward Oskay, Chief of the Board's Appeal Unit, appellant further contended that when he was "resentenced the consecutive terms were aggregated" and that the Board was "disregarding the court's order and requiring [him] to serve more time than the term to which the court sentenced [him] before [he was] eligible for parole." His argument apparently was that the six-year sentence with the three-year mandatory minimum merged with the concurrent ten-year sentence and had no bearing on the calculation of his parole eligibility date. In the final agency determination letter of June 27, 2005, Oskay informed appellant of the Board's decision to affirm the staff's calculation of his parole eligibility date, explaining:

The issues you submitted were presented to [the] Chairman on June 24, 2005. During the consideration of your claims, it was found that N.J.A.C. 10A:71-3.2 provides for the calculation and aggregation of parole eligibility terms where an inmate is serving a term and a consecutive term is imposed. It was found that when a consecutive term is imposed, the parole eligibility term derived from the consecutive term is added to the parole eligibility term derived from the original term to determine the aggregate parole eligibility.

[Y]our March 24, 2000 resentence on . . . Indictment Number 4143-10-97 is consecutive to your original July 27, 1998 sentence on . . . Indictment Number 4112-10-97. Your actual parole eligibility date on the terms derived from these sentences is February l7, 2009 . . . [which] is in compliance with the Parole Board's practices and procedures, correctly reflects credits awarded by the sentencing court or earned and awarded by the Department of Corrections, and is based upon accurate sentencing information. Therefore your contention was found to be without merit.

Russo appealed the Board's final determination, challenging the calculation of his parole eligibility date. Appellant contends his corrected sentence is now twenty years with eight and one-half years of parole ineligibility (85% of the first ten years). Appellant also appears to be challenging his maximum release date, arguing that his sentence was miscalculated by the Department of Corrections (DOC) and Board as beginning to run from the year 2000 rather than the date of sentence on July 27, 1998, which was "vindictive and punitive" and prolonged his prison term. He further contends he was not adequately credited with time previously served and appears to be raising, for the first time, the issue of gap-time credit.

"[A] presumption of reasonableness attaches to the action of an administrative agency and the party who challenges the validity of that action has the burden of showing that it was arbitrary, unreasonable or capricious." Barone v. Dep't. of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). We will not disturb an agency's decision unless it is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999).

Based on our limited scope of review, we discern no basis upon which to second-guess the Board's calculation of appellant's parole eligibility date. We are not persuaded by appellant's argument, which in essence is seeking to make a consecutive sentence virtually concurrent. The Board calculated appellant's parole eligibility term of the sentences on Indictment 4143-10-97, which ran concurrently to each other, in accordance with N.J.A.C. 10A:71-3.2(e), which provides:

When a concurrent term(s) is imposed, the parole eligibility term from the original term, less county jail credits, shall be added to the date the original term began to determine the flat eligibility date on the original term. The parole eligibility term on the concurrent term(s), less county jail credits, shall be added to the date the concurrent term(s) began to determine the flat eligibility date on the concurrent sentence. The aggregate parole eligibility term shall be that period between:

1. The earlier of the two dates on which the terms began; and

2. The later of the two flat parole eligibility dates. . . .

Appellant was ordered to serve a ten-year sentence concurrent to a six-year sentence with a three-year mandatory minimum. Contrary to appellant's contention, the latter sentence clearly affects his parole eligibility term calculation because the three-year mandatory minimum is then added to the NERA parole disqualifier on the consecutive ten-year sentence on Indictment 4112-10-97 to determine the aggregate parole eligibility term. N.J.A.C. 10A:71-3.2(d) provides that:

When a consecutive term is imposed, the parole eligibility term derived from the consecutive term, less county jail credits, shall be added to the parole eligibility term derived from the original term, less county jail credits, to determine the aggregate parole eligibility term. . . .

Pursuant to these regulations, the Board correctly added the three-year mandatory minimum term to the February 17, 2006 parole eligibility date for the NERA sentence (calculated from the date of sentence of July 27, 1998), resulting in a parole eligibility date of February l7, 2009.

 
We decline to address appellant's challenges to the DOC's calculation of his maximum release date as he has not exhausted his administrative remedies, nor did he name the DOC in his Notice of Appeal. The only determination appealed from was the Board's June 27, 2005 affirmance of the staff's calculation of appellant's parole eligibility date.

Affirmed.

The three-year parole supervision term on the eluding conviction was also removed.

(continued)

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A-6611-04T5

July 26, 2006