EDDY FRIAS 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NOT FOR PUBLICATION WITHOUT THE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-3606-08T33606-08T3

EDDY FRIAS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from New Jersey State Parole Board.

Eddy Frias, appellant pro se.

Paula T. Dow, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Eddy Frias, remains incarcerated in Northern State Prison, Rahway, serving an eleven-year sentence for the manufacturing, distributing and dispensing a controlled dangerous substance (CDS). Frias appeals from a final decision of the State Parole Board (the Board), issued February 25, 2009, which affirmed a board panel's decision denying parole and establishing an eighteen-month future eligibility term (FET).

On appeal, appellant presents the following arguments:

POINT ONE

THE NEW JERSEY STATE PAROLE BOARD VIOLATED MY RIGHTS WHEN THEY ERRED WHEN USING INACCURATE INFORMATION AT MY SECOND DENIAL OF PAROLE ON SEPTEMBER 28, 2008.

POINT TWO

THE PAROLE BOARD FAILED TO ABIDE BY THE 1997 PAROLE ACT. SPECIFICALLY BY NOT DEMONSTRAT-ING A PREPONDERANCE OF CREDIBLE EVIDENCE IN THE RECORD THAT I WILL VIOLATE CONDITIONS OF PAROLE IF I AM RELEASED, OR THAT I FAILED TO PARTICIPATE IN MY REHABILITATION TO SUPPORT A SECOND FET.

We have considered Frias's contentions in light of the record and the applicable law, and we affirm.

Following his conviction and sentence in 2004, Frias first became eligible for parole in 2006. Parole was denied and he again became eligible on September 25, 2008. The two member panel denied parole and imposed the FET relying on the following factors: defendant's prior criminal record; the nature of the offenses in defendant's criminal record became increasingly more serious; prior incarceration did not deter defendant's criminal activity; defendant's record contained one serious institutional infraction, resulting in administrative segregation and loss of commutation time; defendant demonstrated insufficient problem resolution skills and displayed a lack of insight into his criminal behavior; and defendant failed to adequately address substance abuse issues. Additionally, the panel considered the mitigating evidence of Frias's participation in institutional programs.

In reaching its determination, the panel considered two confidential psychological evaluation reports dated January 30, 2007 and July 1, 2008, which included a risk assessment evaluation score of twenty-three, evincing a moderate risk of recidivism. Moreover, the panel detailed the reasons supporting its conclusion to deny parole and impose the eighteen-month FET, concluding the evidence showed a reasonable expectation that Frias, if released, would violate the conditions of parole.

Frias appealed and his case was sent to the full Board for review. In a written decision dated February 29, 2009, the Board addressed each of Frias's challenges to the panel's decision, and affirmed the denial of parole and the FET.

Our scope of review is limited. As an administrative agency, the actions of the Board are presumed valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). We must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must affirm unless the determination by the Board is shown to be arbitrary or an abuse of discretion, Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV), "'went so far wide of the mark that a mistake must have been made.'" New Jersey State 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).

The decision of a parole board involves "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Such decisions represent a "'discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.'" Greenholtz v. Neb. Penal & Corr. Complex Inmates, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979) (quoting Sanford H. Kadish, The Advocate and the Expert -- Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961)). Consequently, it is understood that the Board "has broad but not unlimited discretionary powers" in reviewing an inmate's application. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).

Measured by these standards, we discern no basis to disturb the Board's decision denying parole and setting a FET of eighteen-months. There is nothing in the record that suggests the Board's action was either arbitrary or unreasonable. The Board carefully reviewed the issues raised by Frias, which included the matter argued in this appeal; namely, Frias's parole was denied because of an alleged past institutional infraction, despite the fact none had occurred since parole was last reviewed.

We reject Frias's argument. The record reflects the panel inadvertently included the error in its initial determination recommending parole be denied. The Board was required to correct the error and reconsider Frias's parole eligibility. The panel did so and did not change its decision to deny parole; it corrected its determination only to reflect that Frias committed only one institutional infraction on December 29, 2006. Thus, the Board's decision was informed by accurate information.

Also, the Board's consideration of the confidential professional reports was appropriate, and the reports support its conclusion. Records prepared and maintained by or in the custody of the Board are designated confidential by N.J.A.C. 10A:71-2.1(a) and may be considered when deciding whether defendant was likely to commit a crime if released on parole. N.J.S.A. 30:4-123.53(a). Therefore, the Board's consideration of the aggregate of information was proper.

Based on our review, we are satisfied that the Board's decision in this case is fully supported by substantial credible evidence. R. 2:11-3(e)(1)(D). Finally, the FET of eighteen months reflects the Board's expertise as applied to appellant's individual circumstances. See N.J.A.C. 10A:71-3.21(a). The length of the FET was neither unfair nor unreasonable. Accordingly, we discern no basis to disturb the Board's decision denying parole and setting an eighteen-month FET.

 
Affirmed.

(continued)

(continued)

2

A-3606-08T3

April 21, 2010