PEDRO 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NOT FOR PUBLICATION WITHOUT THE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-0

PEDRO HERNANDEZ,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

__________________________________

December 30, 2013

Submitted December 18, 2013 Decided

Before Judges Simonelli and Fasciale.

On appeal from the New Jersey State Parole Board.

Pedro Hernandez, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Pedro Hernandez appeals from a July 25, 2012 final agency decision by the New Jersey State Parole Board ("Board") denying his request for parole and imposing a twenty-month period of future eligibility term (FET). We affirm.

Hernandez is an inmate at Mid-State Correctional Facility and is serving a four-year sentence for burglary and theft. In October 2009, Hernandez used a forklift to break the cement block wall of a warehouse and thereby gain entry into the warehouse from an adjacent building. Hernandez then stole approximately forty pallets of perfume from the warehouse. Police arrested Hernandez after a blood sample found at the crime scene matched Hernandez's blood. In April 2011, Hernandez pled guilty to burglary and theft by unlawful taking and received a four-year prison term. He has one prior theft conviction.

Hernandez first became eligible for parole in 2012. A Hearing Officer (HO) conducted an initial hearing and then referred the matter to a two-member panel, which considered his case, denied parole, and established a twenty-month FET. The panel determined that Hernandez had failed to "address[] his criminal thinking and behavior."

In April 2012, Hernandez appealed to the full Board. In its final three-page written decision on July 25, 2012, the Board determined that "there is a reasonable expectation that [Hernandez] will violate the conditions of parole if released," affirmed the two-member panel, and imposed a twenty-month FET. The Board upheld the panel's decision.

On appeal, Hernandez raises the following point:

THE BOARD PANEL FAILED TO ESTABLISH THAT THERE WAS A REASONABLE EXPECTATION THAT APPELLANT WOULD VIOLATE A CONDITION OF PAROLE IF RELEASED AT THIS TIME.

Our standard of review of administrative decisions of the Parole Board is limited, and it "is grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (alteration in original) (quoting 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)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. Consequently, we may reverse the Parole Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings if they "'could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)).

Applying that deferential standard of review, we find no basis to disturb the Board's decision in this case. We affirm substantially for the reasons that the Board expressed in its July 25, 2012 final decision. We add the following brief comments.

The Board's decision to deny parole is not arbitrary and capricious. Instead, the Board assessed all relevant factors, see N.J.A.C. 10A:71-3.11, and arrived at a decision that is supported by ample evidence, including, but not limited to, the facts that Hernandez lacks insight into his criminal behavior; has exhibited insufficient problem resolution; minimizes his conduct; committed a serious crime; has an eighteen-year history of substance abuse; and made only an initial effort at rehabilitation that "does not equate to a change in [his] behavior."

We are equally satisfied that the imposition of a twenty-month FET was supported by substantial credible evidence in the record. Finally, we are satisfied that the minimal constitutional requirements of due process were fulfilled in this case. See Morrissey v. Brewer, 408 U.S. 471, 485-89, 92 S. Ct. 2593, 2602-05, 33 L. Ed. 2d 484, 497-99 (1972).