HENRY SANCHEZ 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NOT FOR PUBLICATION WITHOUT THE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-5277-09T3

HENRY SANCHEZ,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

____________________________________

Submitted May 25, 2011 Decided June 6, 2011

Before Judges Fisher and Simonelli.

On appeal from the New Jersey State Parole Board.

Henry Sanchez, 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

Appellant Henry Sanchez, an inmate of Southern State Correctional Facility in Delmont, appeals from the State Parole Board's denial of parole and imposition of a twenty-month future eligibility term (FET). We affirm.

The record reveals that on October 20, 2008, appellant pled guilty to second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1); and third-degree possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7. On December 2, 2008, he was sentenced to a seven-year prison term with a mandatory-minimum term of seventeen months.

Appellant became eligible for parole for the first time on May 9, 2010. A two-member panel denied parole based on, among other things: appellant's prior criminal record; insufficient problem resolution, specifically, a lack of insight into criminal behavior and minimization of conduct, whereby appellant "expresse[d] no sincere empathy or remorse for his crime, only for himself [and his] family;" and lack of an adequate parole plan to assist in his successful reintegration into the community. The panel also considered mitigating factors, such as appellant's remaining infraction-free, participation in institutional programs, including programs specific to behavior, and his attainment of average to above average institutional reports. The panel imposed a twenty-month FET.

Appellant administratively appealed the panel's determinations to the Board. The Board affirmed the decisions to deny parole and establish a twenty-month FET.

Appellant filed this appeal, presenting the following arguments for our consideration:

Point One

THE PAROLE BOARD ACTED ARBITRAR[ILY] AND CONTRARY TO LAW DENYING PAROLE WITHOUT MEETING LAW AND/OR STATUTORY REQUIREMENT TO [SHOW BY] A PREPONDERANCE OF THE EVIDENCE HOW IS THE APPELLANT LIKELY TO RECIDIVATE BECAUSE HE LACKS INSIGHT INTO CRIMINAL BEHAVIOR BY WAY OF MINIMIZING CONDUCT AND EXPRESSING NO SINCERE EMPATHY/REMORSE FOR HIS CRIME, ONLY FOR HIMSELF AND FAMILY.

Point Two

PAROLE BOARD ACTED ARBITRAR[ILY] AND CONTRARY TO LAW BY DENYING THE APPELLANT RELEASE ON PAROLE WITHOUT SHOWING BY A PREPONDERANCE OF THE EVIDENCE HOW A PRIOR CONVICTION FOR DRIVING WHILE INTOXICATED CONSTITUTES LIKELIHOOD TO RE-OFFEND IF RELEASED AT THIS TIME.

Point Three

THE PAROLE BOARD SHOULD HAVE TAKEN INTO CONSIDERATION THAT APPELLANT IS AN ALIEN CONVICTED OF AN AGGRAVATED FELONY DRUG TRAFFICKING OFFENSE FOR IMMIGRATION PURPOSES AND WILL BE DEPORTED, SO HE SHOULD HAVE BEEN PAROLED TO HIS ICE DETAINER.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1). We add only the following brief comments.

The Supreme Court has held that the Board's "decisions are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (citation omitted). "Accordingly, the Board 'has broad but not unlimited discretionary powers,' and its determinations 'are always judicially reviewable for arbitrariness.'" Ibid. (citation omitted). The Board's decisions "depend[] on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). As the Court observed, parole boards should focus on "'what a man is and what he may become rather than simply what he has done." Ibid. (citation omitted). In examining the record in light of the arguments raised, we are satisfied that the Board adhered to these principles and its own guidelines in rendering the final decision. The Board's findings were based "'on sufficient credible evidence in the whole record[,]'" Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 542 (App. Div.), certif. denied, 111 N.J. 649 (1988)), and are entitled to our deference. In its application of those facts, we find nothing arbitrary or capricious in the Board's determination to deny parole and establish a twenty-month FET.