RAMON HERNANDEZ 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NOT FOR PUBLICATION WITHOUT THE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-4388-09T2

RAMON HERNANDEZ,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

May 27, 2011

Submitted March 14, 2011 - Decided

Before Judges Lisa and Alvarez.

On appeal from the New Jersey State Parole Board.

Ramon Hernandez, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Ramon Hernandez, a South Woods State Prison inmate, appeals from the final administrative decision of the Parole Board (Board) affirming a three-member Board panel's (panel) determination denying him parole and imposing a twenty-seven-month future eligibility term (FET).1 We affirm.

Hernandez was imprisoned on December 3, 1997, in accord with his guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4(a), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The agreed-upon sentence, which he is currently serving, is twenty-seven years, subject to a nine-year parole ineligibility term.

On the same day Hernandez was sentenced, one of his two co-defendants, William Carrillo, was also sentenced. The two were together in a holding cell when Hernandez struck Carrillo on the head with the chain on his restraints. Carrillo required stitches to close the head wound which resulted. Hernandez subsequently pled guilty to an additional count of aggravated assault and was sentenced to a term of five years imprisonment, concurrent to his aggravated manslaughter sentence, on September 25, 1998.

In rendering its decision denying Hernandez parole, the panel relied on a number of statutory factors. Hernandez has an extensive juvenile history. While incarcerated, he has been found guilty of seventeen institutional disciplinary infractions, including three "*," or asterisk, offenses. See N.J.A.C. 10A:4-4.1 (observing * offenses are "the most serious" in the range of institutional infractions). Hernandez's last infraction, for refusing to accept a work assignment, .254, occurred on September 20, 2007.

Additionally, the panel took into account the serious nature of the offense which resulted in Hernandez's incarceration, his failure to complete programs previously recommended by an earlier parole panel, and confidential material/professional reports. The panel quoted Hernandez explaining his crime: "I just felt like shooting him, just something I did."

The panel's decision also considered that Hernandez's criminal offenses were increasingly serious, that he was incarcerated for a multi-crime conviction, that prior opportunities on adult probation and parole did not deter his criminal conduct, that as a juvenile he had violated conditions of probation and parole, that prior terms of incarceration had not deterred his criminal behavior, and that he lacked insight into his criminal conduct, minimized it, and did not adequately address his substance abuse problem. On this point, the Board noted Hernandez's failure to enroll in the therapeutic community program. The panel also considered mitigating factors such as his participation in institutional programs, above-average to average institutional reports, attempts to enroll and participate in programs into which he was not admitted, and the fact he had remained infraction-free since the imposition of his last FET.

Hernandez appealed the panel's decision to the Board, which affirmed the denial of parole and the imposition of the FET on April 28, 2010. The Board found the panel had considered all relevant information and fully documented and supported its decision as required by N.J.A.C. 10A:71-3.11 and N.J.A.C. 10A:71-3.18(f). By a preponderance of the evidence, the Board concluded there was a substantial likelihood Hernandez would commit a crime if then released on parole.2

On appeal, Hernandez alleges the Board failed to consider material facts, failed to document the necessary preponderance of evidence that he would commit a crime if released, issued a decision contrary to written Board policy, and that a Board member who had a demonstrable personal interest or prejudice participated in the deliberations and otherwise failed to comply with the Board's professional code of conduct.

We apply the same standard to parole decisions as to other agency determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV). Such decisions "should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion[.]" Ibid. (citations omitted). The Board's decisions regarding parole are highly individualized, and it has significant discretionary power in making release decisions. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI). In deciding whether the Board's decision was arbitrary and capricious, the parole denial must be measured against a three-part standard.

First, we must determine whether the agency's action violated express or implied legislative policy. Trantino IV, supra, 154 N.J. at 24. Second, we must assess whether the record contains substantial evidence to support the agency's decision. Ibid. Finally, we must evaluate whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not have been reasonably made. Ibid.

In our view, within the context of Hernandez's convictions and institutional behavior, the Board's decision accorded with applicable law and legislative policies and was amply supported by substantial evidence. Hernandez disagrees with the conclusions the Board reached; however, that is not a sufficient basis for us to reverse its decision. Neither his psychological nor his risk assessment evaluations, in addition to the statutory factors, were favorable to this parole release and, in fact, the prognosis for reoffense was considered high. In all respects, the record supports the Board's decision to deny parole and impose the twenty-seven-month FET.

We also note Hernandez contends a panel member was prejudiced against him because he was asked if he killed his victim as part of a gang initiation. The record does not support this version of the question. Rather, the panelist pressed Hernandez for the reasons he killed his victim after he was initially unable to articulate a response. The record simply does not bear out Hernandez's factual basis for the claim that a panel member acted with bias or prejudice in deciding his case.

Although not entirely clear, Hernandez also contends a panel member failed to comply with the professional code of conduct because of the discussion regarding his refusal to participate in a drug program. Hernandez asserted he did not perceive himself to be a drug addict any longer. The questions posed by all the panel members were well within the realm of their responsibilities in determining the facts prior to deciding parole and calculating the FET and did not reflect any impropriety.

The Board's decision was amply supported by substantial credible evidence on the record. We perceive no basis for a downward adjustment. See N.J.A.C. 10A:71-3.11(a),(b). Predictions about an inmate's future behavior are indeed fraught with subjectivity, mandating broad discretion in the Board's decision-making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff d, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). The Board exercised its legislative mandate properly. The decision was reasonable, and not arbitrary and capricious as Hernandez alleges.

Affirmed.

1 This was actually the fourth occasion that Hernandez had become eligible for parole, having served approximately twelve years and nine months of his sentence. The matter was referred directly to the panel because his conviction was for aggravated manslaughter. See N.J.A.C. 10A:71-3.15(b).

2 Because Hernandez's offense was committed in 1996, the prior standard for parole is applicable. See L. 1979, c. 441, 9 (not amended until L. 1997, c. 213, 1).