CURTIS C. SMITH 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NOT FOR PUBLICATION WITHOUT THE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-2536-11T3

CURTIS C. SMITH,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

________________________________________________________________

Submitted May 6, 2013 Decided May 14, 2013

Before Judges Ashrafi and Espinosa.

On appeal from the New Jersey State Parole Board.

Curtis C. Smith, appellant pro se.

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

PER CURIAM

Curtis Smith appeals from a final agency decision of the New Jersey State Parole Board denying him parole following his second review and imposing a sixty-month future eligibility term (FET). We affirm.

Smith presents the following arguments for our consideration in this appeal:

POINT I

THE PAROLE BOARD RELIED ON AN EXTRAJUDICIAL STATEMENT THAT CONSISTED OF HYPNOTICALLY REFRESHED TESTIMONY IN VIOLATION OF NEW JERSEY RULES OF EVIDENCE 702 VIOLATING CURTIS C. SMITH'S DUE PROCESS RIGHTS TO A FAIR HEARING.

POINT II

THE NEW JERSEY STATE PAROLE BOARD'S DECISION TO DENY PAROLE RELEASE TO CURTIS SMITH AND IMPOSE A SIXTY-MONTH PAROLE INELIGIBILITY TERM IN EXCESS OF THE 10A:71-3.21(a)(1) GUIDELINES IS ARBITRARY AND CAPRICIOUS AND A CLEAR ABUSE OF THEIR DISCRETION.

Our review of the Board's decision is limited. The Parole Board's decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino V) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Although there is an "inherent difficulty in gauging whether a parole determination constitutes an abuse of discretion[,]" the judicial review of Parole Board determinations "does not engender a more exacting standard of judicial review than that applicable to other administrative agency decisions." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV), modified in part, aff'd in part, 166 N.J. 113 (2001). Parole Board decisions should not be reversed unless found to be arbitrary or an abuse of discretion. Id. at 25; Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971); State v. Lavelle, 54 N.J. 315, 322 (1969); Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (App. Div. 2005). Because the offense here was committed in 1980, the standard applicable to the parole determination is contained in N.J.S.A. 30:4-123.53(a), which provides that the inmate shall be released unless "by a preponderance of the evidence . . . there is a substantial likelihood that the inmate will commit a crime . . . if released on parole . . . ." After reviewing the record in light of the applicable principles, we conclude that the Board did not abuse its discretion in denying appellant parole.

Smith pled guilty in 1981 to first-degree murder, N.J.S.A. 2C:11-3; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), (5) and (6) and N.J.S.A. 2C:5-1; second-degree robbery, N.J.S.A. 2C:15-1; and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). He was sentenced to life imprisonment and required to serve twenty-five years before becoming eligible for parole on the murder charge. The terms imposed on the remaining charges were consecutive to each other but concurrent to the sentence for the murder charge. These charges arose from the murder of Smith's former girlfriend that followed several hours of sadistic torture and aggravated sexual assaults by Smith and his co-defendants. Smith admitted that he slit the victim's throat and stabbed her repeatedly in a secluded location, where the defendants left the victim's body.

In its final decision, the Parole Board stated its finding that the details of the offenses "were gathered from the Adult Presentence Report (PSI) that was provided to the Board following [Smith's] sentencing and that they are a matter of record." A defendant may challenge any of the facts contained in the presentence report at his sentencing. State v. Newman, 132 N.J. 159, 170 (1993) (citing State v. Kunz, 55 N.J. 128, 144 (1969); R. 3:21-4 (b)). There is no record here that defendant challenged any of the facts contained in his presentence report, whether supplied by his uncle under hypnosis or from another source. His argument that the Parole Board improperly relied upon a hypnotically refreshed statement, therefore, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The Parole Board concluded that the three-member Adult Panel's decision to establish a sixty-month FET was supported by a preponderance of the evidence that there is a substantial likelihood that Smith will commit a crime if released on parole. The Parole Board found that the Adult Panel appropriately concluded, based on his responses and documentation in his file, that Smith possessed "insufficient problem resolution[,]" lacked insight into his criminal behavior, and minimized his criminal conduct. The Parole Board also noted that the Adult Panel had appropriately considered mitigating factors, i.e., that Smith had no prior criminal record, was infraction-free while incarcerated, had participated in programs specific to his behavior and in institutional programs, had attempted to enroll in other programs, had average to above-average institutional reports, and had achieved minimum custody status. While the FET for inmates serving a sentence for murder is generally established pursuant to N.J.A.C. 10A:71-3.21(a) and (c), the Parole Board concluded that the Adult Panel had documented that the future parole eligibility date that would be established pursuant to such subsections is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior. See N.J.A.C. 10A:71-3.21(d). Accordingly, the Parole Board affirmed the determination to establish a sixty-month FET for Smith.

Despite his measure of success while incarcerated and his own admission that he slit the victim's throat and caused her death by stabbing her repeatedly, Smith continued to minimize his own culpability. We are satisfied that the record supports the Parole Board's conclusion that the preponderance of the evidence presented a substantial likelihood that Smith would commit a crime if released on parole at the time.

A