R.T.S., SR v. NEW JERSEY STATE PAROLE BOARD

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4315-09T3

R.T.S., SR.,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

_______________________________________

May 9, 2011

Submitted April 5, 2011 Decided

Before Judges Parrillo and Yannotti.

On appeal from the New Jersey State Parole Board.

R.T.S., Sr., appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

R.T.S., Sr. appeals from a final determination of the State Parole Board (Board) dated February 24, 2010, which denied parole and established a twenty-four month future eligibility term (FET). We affirm.

In 2001, after a trial before a jury, R.T.S., Sr. was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); second-degree sexual assault, N.J.S.A. 2C:14-2(b); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Appellant's granddaughter was the victim of these offenses. The court sentenced appellant to an aggregate term of sixteen years of incarceration, and imposed community supervision for life pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -21. Appellant first became eligible for parole in 2006; however, parole was denied.

Appellant again became eligible for parole in 2009. A hearing officer conducted the initial parole interview. The hearing officer referred the matter for further review by a two-member Board panel because: referral was mandatory under N.J.A.C. 10A:71-3.15(b); the offenses of which appellant had been convicted were serious; appellant was incarcerated as a result of a multi-crime conviction; a prior opportunity for probation had not deterred further criminal behavior; appellant had violated probation in the past; he had participated in institutional programs but they were not "symptom specific"; he had not taken certain programs previously recommended by a Board panel; and during the interview, appellant had denied he committed the offenses.

The two-member Board panel conducted its hearing on September 28, 2009, and decided to deny parole and establish a twenty-four month FET. The panel noted the following factors in support of its decision: appellant had a prior criminal record; his criminal record had become increasingly more serious; he was incarcerated for a multi-crime conviction; a prior opportunity for probation failed to deter criminal behavior; he had violated probation in the past; he had been found guilty of an institutional infraction that was serious in nature and resulted in the loss of commutation credits; and there had been insufficient problem resolution on his part, including a lack of insight into his criminal behavior, a denial that he committed the crimes for which he is incarcerated and minimization of the conduct involved. As mitigating factors, the panel noted that appellant had participated in institutional programs; attempted to enroll and participate in other programs but was not admitted; and his lost commutation time had been restored.

The panel determined that parole should be denied because there was a reasonable expectation that appellant would violate the conditions of parole if released at this time. Appellant filed an administrative appeal to the full Board. He asserted that the panel failed to document its decision by a preponderance of the evidence. He also asserted that the panel had erroneously denied his application for parole because he did not participate in a behavior modification program.

The Board considered the matter on February 24, 2010, and voted to affirm the panel's decision. The Board issued a written decision dated February 24, 2010. The Board rejected appellant's appeal, noting that the panel had not cited appellant's failure to take a behavioral modification program as a specific reason to deny parole. The Board found that the panel had considered all of the relevant information as required by N.J.A.C. 10A:71-3.11 and had fully documented its reasons for denying parole, pursuant to N.J.A.C. 10A:71-3.18.

The Board further found that the panel had properly determined, based on a preponderance of the evidence, that appellant would violate the conditions of parole if released on parole at this time. The Board therefore affirmed the panel's decision to deny parole and establish a twenty-four month FET. This appeal followed.

Appellant raises the following arguments for our consideration:

POINT ONE

IT IS SUBMITTED THAT I SHOULD HAVE BEEN GRANTED PAROLE OR ALTERNATIVE RELIEF BECAUSE I DID NOT FAIL TO COOPERATE IN MY OWN REHABILI[T]ATION AND THERE IS A RE[A]SONABLE EXPEC[T]ATION THAT I WOULD NOT VIOLATE [CONDITIONS] OF MY PAROLE IF RELEASED AT THIS TIME.

POINT TWO

APPE[L]LANT'S LIBERTY INTEREST RIGHTS UNDER THE 1979 PAROLE ACT "PRESUM[P]TIVE PAROLE" STANDARD WAS VIOLATED BECAUSE THE PROPER CONSIDERATION WAS NOT GIVEN TO HIS CASE BY THE PANEL WHO RELIED ON INACCURATE INFORMATION [IN] APPELLANT['S] PRESENTENCE REPORT.

POINT THREE

DURING THE PAROLE PANEL HEARING THE BOARD PANEL WHICH DENIED APPELLANT PAROLE RELEASE DEMONSTRATED PREJUDICE AND BIAS DUE TO THE OFFENSES APPELLANT WAS [CONVICTED] OF WHICH AFFECTED [ITS] DECISION.

In reviewing a final decision of the Parole Board, we consider whether: 1) the Board's action is consistent with the applicable law; 2) there is substantial credible evidence in the record as a whole to support the Board's findings; and 3) in applying the law to the facts, the Board erroneously reached a conclusion that could not have been reasonably made based on the relevant facts. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998).

We are satisfied from our review of the record that there is substantial credible evidence in the record to support the Board's decision to deny parole based on its finding that there is a reasonable expectation that appellant would violate the conditions of parole if released at this time. Appellant asserts that the record shows that he has completed certain programs, and is on a waiting list for other programs. He says that, contrary to the Board's finding, the record establishes that there is a reasonable expectation that he would not violate parole conditions if released on parole. We disagree.

Here, the two-member panel and the Board relied upon a variety of reasons for denying parole, including defendant's lack of insight and minimization of the conduct for which he was convicted. The confidential appendix includes a psychological evaluation that occurred on July 16, 2009, which supports the Board's findings on these issues. The record also supports the other reasons relied upon by the Board for its decision.

Appellant contends, however, that the Board erred by basing its decision in part upon the following: a prior opportunity for probation failed to deter criminal behavior and he violated probation in the past. Appellant concedes that previously he was placed on probation for carrying a concealed weapon. Appellant acknowledges that he violated the conditions of probation but he asserts that this was not because he committed a new offense but because he was unable to pay the monthly installments on the fine imposed when he was sentenced. Appellant asserts that the probation department extended his probation until he fully paid the fine.

We note that appellant did not raise these arguments when he appealed the panel's decision to the Board. Because appellant did not raise these issues before the agency, he is precluded from raising them on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Furthermore, appellant's presentence report (PSR) of January 31, 2000, indicates that his probation was extended from six months to one year because he had not "done well" during the six month probationary period.

Moreover, the PSR does not state that appellant's probationary term was extended because he had not paid the fine. Although appellant asserts that his PSR does not contain accurate facts, he was obligated to correct any errors or omissions in that report at the time he was sentenced. In any event, the record establishes that appellant was placed on probation, it did not deter him from committing the crimes for which he is presently incarcerated, and he violated the conditions of probation.

Appellant also argues that the panel demonstrated prejudice and bias towards him because of the offenses for which he is incarcerated, specifically, the sexual abuse of his granddaughter. Appellant maintains that he was wrongfully convicted and that he presented "ample evidence that he did not sexually abuse his granddaughter." Appellant claims that the charges against him were "orchestrated" by his son and daughter-in-law because they wanted him to transfer title to his home to them so they could sell it.

The fact remains, however, that appellant was convicted by a jury of aggravated sexual assault, sexual assault and endangering the welfare of a child. His conviction and sentence were affirmed on appeal. State v. R.T.S., Sr., No A-4187-01 (App. Div. Nov. 17, 2003) (slip op. at 12). Under the circumstances, the Board did not err by concluding that appellant had committed the offenses for which he is incarcerated, the charges were serious, appellant lacked insight into those offenses and he had minimized the seriousness of the conduct that resulted in his convictions.

A