DENNIS O'BRIEN 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NOT FOR PUBLICATION WITHOUT THE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-2345-11T4

DENNIS O'BRIEN,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________________________________________

January 9, 2013

Argued December 19, 2012 - Decided

Before Judges Grall, Simonelli and Koblitz.

On appeal from the New Jersey State Parole Board.

Dennis O'Brien, appellant, argued the cause pro se.

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Dennis O'Brien, an inmate currently residing in Fletcher House, a halfway house, appeals from a final determination of the New Jersey State ParoleBoard (Board), dated November 30, 2011, which denied his application for paroleand established a twenty-month future eligibility term (FET). For the reasons that follow, we affirm.

O'Brien, a disbarred attorney, is presently serving an aggregate term of eighteen years' imprisonment with an eight year period of parole ineligibility for stealing money from older and disabled clients. On April 16, 1999, O'Brien was originally sentenced to probation for three counts of third-degree misappropriation of funds, N.J.S.A. 2C:21-15. He was ordered to pay $338,639.93 in restitution to seven former clients. He continued to steal from his clients while on probation and was therefore convicted of a violation of probation. O'Brien was sentenced to four years in prison on the violation of probation, to run concurrently to the sentence imposed on the two new charges of second-degree theft, N.J.S.A. 2C:20-3(a). On the new charges, he received consecutive sentences of nine years in prison with a four-year parole disqualifier on each count. He was ordered to pay approximately $1,800,000 in restitutionto twenty-six former clients.

On March 6, 2005, while incarcerated, O'Brien was found guilty of threatening a corrections officer with bodily harm, which is an asterisk offense, *.005. N.J.A.C. 10A:4-4.1(a) (listing asterisk offenses as the most serious prohibited acts). Although he admitted the charge at the time, he told the parole panel that he had not committed the infraction.

O'Brien first became eligible for parole on May 1, 2011. Two months before that date, he appeared before a two-member adult panel of the Board. The panel denied paroleand established a twenty-month FET.1 In its notice of decision, the panel determined that the facts supported a reasonable expectation that O'Brien would violate the conditions of paroleif he were released on parole. The panel noted by way of mitigation that O'Brien had participated in institutional programs; received average to above average institutional reports; had made attempts to enroll and participate in programs but was not admitted; and had achieved and maintained minimum custody status. The panel noted, however, as reasons for denying parolethat: an opportunity on community supervision probation had been terminated, including a new arrest and failure to make timely restitution payments; O'Brien committed a serious institutional infraction on March 6, 2005; he had insufficient problem resolution, specifically a lack of insight into criminal behavior and engaged in minimization of his conduct; and O'Brien was the victims' attorney. The panel wrote that "despite being a well-educated individual [O'Brien] preyed on vulnerable victims-even after being given the benefit of probation, he continued w[ith] the same behavior - he shows little remorse towards his victims[;] it seems to be all about him."

O'Brien filed an administrative appeal to the full Board. During the appeal process, the panel reconsidered the case. In reaffirming its initial decision, the panel cited two additional mitigating factors: O'Brien's participation in programs specific to his behavior and that he had commutation time restored. The panel recommended that O'Brien remain in Fletcher House and that he participate in institutional programs geared toward eliminating criminal behavior.

The Board determined that the panel had considered all of the relevant information and fully documented and supported its decision to deny parole. The Board stated that the "Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a reasonable expectation that [O'Brien] would violate the conditions of parole if released on parole at this time." The Board affirmed the panel's decision to deny parole and establish a twenty-month FET.2 This appeal followed.

O'Brien argues that the panel gave insufficient weight to the restitution he made to the victims, his adjustment to the halfway house, his low risk for recidivism reflected in the mental health report received by the panel and the fact that he had only one institutional infraction, which occurred early in his incarceration. He also maintains that the panel should have given greater weight to his statements of remorse at the parole hearing, rather than draw the conclusion that he "exhibit[ed] insufficient problem resolution." Additionally, he claims that the panel should not have revisited the facts underlying his convictions, such as the age and circumstances of his victims or his status as the victims' trusted attorney. O'Brien gave the panel no cogent motive for stealing over two million dollars from more than thirty clients, nor any reason for continuing to steal even after he was caught, convicted and given a chance to reform on probation. In his testimony before the panel, he ignored the disability and dependence of his former clients,3 and maintained that he was motivated by a desire to cover up bad investments and protect his reputation. O'Brien stressed to the panel how helpful he was to the prosecutor and how he sold his assets to make restitution.

The Supreme Court has recognized that the Board's paroledeterminations "are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State ParoleBd., 166 N.J.113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State ParoleBd., 62 N.J.348, 359 (1973)). Indeed, a paroledecision "depends 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 parolerelease." Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979).

The Board's discretionary authority in the paroleprocess is broad but not unlimited, and the Board's decisions remain subject to judicial review for arbitrariness. Trantino VI, supra, 166 N.J.at 173 (citations omitted). In reviewing a final decision of the Board, we consider: 1) whether the Board's action is consistent with the applicable law; 2) whether there is substantial credible evidence in the record as a whole to support the Board's findings; and 3) whether 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 ParoleBd., 154 N.J.19, 24 (1998) (Trantino IV).

O'Brien is presently incarcerated for crimes committed between 1999 and 2003. Therefore, the standard that governs O'Brien's application for paroleis set forth in N.J.S.A.30:4-123.53(a), which provides that an "inmate shall be released on parole at the time of [his] paroleeligibility, unless" it is determined by a preponderance of the evidence "that there is a reasonable expectation that the inmate will violate conditions of parole. . . if released on parole[.]" N.J.S.A.30:4-123.53(a).4

In making this determination, the Board must consider the factors enumerated in N.J.A.C.10A:71-3.11(b), which include, but are not limited to, the facts and circumstances of the offense; aggravating and mitigating factors concerning the offense; commission of serious disciplinary infractions; adjustment to previous probation; statements of the inmate reflecting on whether there is a likelihood the inmate will commit another crime; and participation in institutional programs. N.J.A.C.10A:71-3.11(b).

Here, the Board properly considered the relevant factors in N.J.A.C.10A:71-3.11(b) in denying parole. The Board found that there is a reasonable expectation that O'Brien will violate the conditions of paroleif he is released. N.J.S.A.30:4-123.53(a). The Board based its decision on factors spelled out in the Administrative Code and fully supported by the record before it. We are satisfied that the Board's decision to deny parole is fully supported by substantial credible evidence in the record and is not arbitrary.

A

1 O'Brien was subsequently granted parole and will be released on February 4, 2013. We deny the Board's motion to dismiss this appeal as moot. O'Brien's release date in the near future does not deprive us of the ability to grant practical relief at this time. See Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006).

2 This FET is governed by N.J.A.C. 10A:71-3.21(a)(3).

3 The panel reviewed correspondence from the victims and their families, as well as a victim input hearing report.

4 O'Brien completed his four-year sentence for the crimes he committed between August 1992 and January 1998. See N.J.A.C. 10A:71-3.10(a) (explaining the applicable parole standard for crimes committed before August 19, 1997).