CARLOS FLORES 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NOT FOR PUBLICATION WITHOUT THE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

CARLOS FLORES,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

November 5, 2014

Submitted October 22, 2014 Decided

Before Judges Alvarez and Waugh.

On appeal from the New Jersey State Parole Board.

Carlos Flores, appellant pro se.

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

PER CURIAM

Carlos Flores is incarcerated in Northern State Prison serving a ten-year prison term, subject to three years of parole ineligibility. The sentence was imposed on January 28, 2011, as a result of his guilty plea to first-degree cocaine distribution, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(1). Flores now appeals the May 29, 2013 final decision of the State Parole Board (Board) denying him parole and imposing a twenty-nine-month future eligibility term (FET).

In its written decision, the Board also denied Flores's request that he be paroled to the federal authorities. He must "serve eighty-seven (87) months in federal custody before returning to the Dominican Republic," his country of origin. At the Board Panel hearing conducted November 5, 2012, Flores acknowledged being deported in 2005, returning to this country a year or two later, and promptly engaging in the business of drug dealing.

The Board's decision reiterated the Board Panel's factual findings supporting their reasons for parole denial and imposition of the FET

prior criminal record is extensive and repetitive; nature of criminal record increasingly more serious; prior opportunities on juvenile probation and parole have failed to deter criminal behavior; prior opportunities on parole have been violated in the past; prior opportunity on New York parole has been violated for technical violations; and prior incarceration did not deter criminal behavior. . . . "Inmate has returned from being deported and returned to drug dealing. He presents a long shot for a successful parole."

The Board also noted the panel acknowledged that Flores's assessment evaluation indicated he was a medium risk of recidivism. He had been infraction-free since imprisonment, participated in institutional programs, had average to above-average institutional reports, and attempted to participate in programs to which he was not able to gain admission.

In considering the entire record, the Board Panel concluded by "a preponderance of the evidence" that there was "a reasonable expectation that [Flores] will violate conditions of parole if released[.]" The Board agreed, explaining that the Board Panel's establishment of the twenty-nine-month FET was authorized by N.J.A.C. 10A:71-3.21, which "provides that the presumptive parole eligibility term for an inmate convicted of narcotics laws violation is twenty (20) months. This term may be increased or decreased by nine months when the severity of the crime, the prior criminal record[,] or other characteristics warrant an adjustment, pursuant to N.J.A.C. 10A:71-3.21(c)." The Board opined that the FET was warranted and authorized by the Administrative Code.

The Board viewed the "inaudible" designations in the transcript, which Flores also argued were prejudicial to the appeal process, as insignificant. It did not consider the record to otherwise support Flores's claim of improper conduct by the Board Panel members. This includes Flores's claim that the Panel members assumed because he was from the Dominican Republic, that he was involved in a gang.

The Board also noted that Flores's request that he be granted parole to a federal detainer was not a basis for either granting or denying parole

The same standards used to determine parole release to the community also apply to parole release to detainers. . . . [T]he existence of a deportation agreement or a detainer does not reduce the reasonable expectation that you will violate conditions of parole, if released on parole and, more significantly, is not a sufficient basis for the Board to consider modifying the decision of the Board Panel.

The Board concluded

Based upon consideration of the facts cited above, the Board finds that the Board Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision pursuant to N.J.A.C. 10A:71-3.18(f). Additionally, in assessing your case, the Board concurs with the determination of the Board Panel that a preponderance of the evidence indicates that there is a reasonable expectation that you would violate the conditions of parole if released on parole at this time.

The offense circumstances leading to the indictment can be briefly described. A confidential informant arranged to purchase 160 grams of cocaine from Flores. When Flores went to the prearranged spot and saw the officers, he began to run towards the Passaic River, discarding the drugs along the way. He was apprehended after he jumped into the water to escape arrest. The drugs were also recovered.

When sentenced, Flores was thirty-one years old. He had four prior convictions, including two in New York for possession of a handgun and of illegal drugs, and one in New Jersey for unlawful possession of a handgun. In addition, Flores has been convicted of a disorderly persons offense and twice adjudicated delinquent.

Flores raises these points on appeal: (1) that the Board's decision was not supported by sufficient credible evidence, as he cooperated in his own rehabilitation; (2) that the hearing transcript is incomplete, thereby preventing him from presenting necessary facts on appeal; (3) that the incomplete transcript prevents him from "marshall[ing] the facts to challenge the panel remarks that violated the code of professional conduct." In Trantino v. N.J. State Parole Board, 154 N.J. 19 (1998), (Trantino 4), our Supreme Court defined the standards for determining the validity of parole board decisions

(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law;

(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Id. at 24.]

We address only Flores's last two points of error. It is unfortunate that the transcript of the parole hearing was "indiscernible" at some points. But that notation does not in this case require a new hearing or other extraordinary relief. The transcript is sufficiently complete. It demonstrates that the Board panel members were familiar with Flores's history and asked him appropriate questions designed to elicit the information necessary for them to make the parole decision. It is also clear that he readily answered the questions posed. Nothing in the transcript even warrants discussion of Flores's claim that Board panel members behaved unprofessionally in any fashion.

Given the record before us, and applying the standards expressed in Trantino, we discern no basis to interfere with the Board's judgment. The Board correctly concluded, by a preponderance of the evidence, that it is reasonably probable Flores will violate his parole if released. See N.J.S.A. 30:4123.53(a). Flores's points of error lack sufficient merit to warrant further discussion in a written opinion. R. 2:113(e)(1)(E). We affirm substantially for the reasons expressed by the Board. R. 2:11-3(e)(1)(D).

Affirmed.