GEORGE MARX v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GEORGE MARX,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

___________________________________

November 23, 2016

Argued October 6, 2016 Decided

Before Judges Fisher and Leone.

On appeal from the New Jersey State Parole Board.

Joseph P. Grimes argued the cause for appellant.

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Appellant George Marx appeals a final agency decision of the New Jersey State Parole Board (the "Board") denying parole and establishing a sixty-month future eligibility term (FET). We affirm.

I.

On November 22, 1991, while on probation, appellant followed a female bank employee from a parking lot into a bank in Gloucester Township. He threatened the female with an HIV-infected hypodermic needle, forced her to allow him to accompany her into the bank, where he held her against her will and attempted to rob the bank. Officers entered the bank, where appellant pointed a gun at them, resulting in the officers shooting and wounding appellant. Charged with fifteen counts, appellant pled guilty to first-degree kidnapping, first-degree armed robbery, and two counts of fourth-degree aggravated assault. On May 7, 1993, he was sentenced to an extended term of sixty years in prison with a twenty-year period of parole ineligibility.

Upon appellant's arrest, the police learned of his involvement in a drug-trafficking operation. Charged with five counts, appellant pled guilty to second-degree possession of cocaine with intent to distribute. On May 7, 1993, he was also sentenced to a concurrent term of ten years in prison with four years of parole ineligibility.

On September 14, 1993, appellant was separately indicted for second-degree conspiracy to distribute cocaine. He pled guilty to this charge and was sentenced to a concurrent term of ten years in prison on July 8, 1994.

A two-member parole panel denied appellant parole and referred appellant to a three-member panel to impose an FET outside of the administrative guidelines. After reviewing the decision of the two-member panel, a three-member panel denied parole and imposed a sixty-month FET. On September 24, 2014, the full Board affirmed the three-member panel's decision, denying appellant parole and imposing the sixty-month FET for the same reasons articulated by both the two-member and the three-member panels.

Appellant appeals. His pro se brief argues

THE BOARD PANEL'S DECISION TO DENY PAROLE IS ARBITRARY AND CAPRICIOUS WITH FAILURE TO SUPPORT BY A PREPONDERANCE OF EVIDENCE THAT APPELLANT WOULD BE SUBSTANTIALLY LIKELY TO COMMIT ANOTHER CRIME IF RELEASED ON PAROLE.

He also argues

THE NEW JERSEY STATE PAROLE BOARD ABUSED ITS DISCRETION IN DECIDING TO EXTEND DEFENDANT[']S FUTURE ELIGIBILITY TO 60 MONTHS.

Counsel was appointed and filed a reply brief arguing the Parole Board erred in denying parole and in imposing an FET.

II.

"[T]he Parole Board is the 'agency charged with the responsibility of deciding whether an inmate satisfies the criteria for parole release under the Parole Act of 1979.'" Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222 (citation omitted), cert. denied, __ U.S. __, __ S. Ct. __, 196 L. Ed. 2d 37 (2016). The Board's discretionary powers are broad. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001). We will disturb the Board's decisions only if "arbitrary, capricious or unreasonable, or [if] not 'supported by substantial credible evidence in the record as a whole.'" Id. at 191 92 (emphasis omitted) (citation omitted); see also Acoli, supra, 224 N.J. at 222 23.

Our "limited scope of review is grounded in strong public policy concerns and practical realities." Trantino, supra, 166 N.J. at 200. "[T]he Parole Board makes 'highly predictive and individualized discretionary appraisals'" which "must realistically be recognized to be inherently imprecise, as they are based on 'discretionary assessment[s] of a multiplicity of imponderables.'" Acoli, supra, 224 N.J. at 222 (second alteration in original) (citation omitted). We must hew to our standard of review.

III.

Appellant argues the evidence did not demonstrate a substantial likelihood that he would commit a crime if released on parole. Prior to 1997, the law required release of an inmate eligible for parole unless there was "a substantial likelihood that the inmate will commit a crime." N.J.S.A. 30:4-123.53(a) (1979). That law is applicable to appellant. Acoli, supra, 224 N.J. at 235-36.

The Board properly found a substantial likelihood that defendant would commit a crime if released on parole. The Board cited that prior to the crimes related above, appellant had an extensive history of criminal activity with multiple convictions, including murder, armed robbery, carrying a prohibited weapon, burglary, fraud, conspiracy to distribute a controlled dangerous substance, and receiving stolen property. For those crimes, appellant has previously served two lengthy terms of incarceration during which he was convicted of three escape attempts. Appellant had been afforded both parole and probation and violated both.

Additionally, the Board relied on appellant's responses to questions posed by the two-member panel. The Board determined those responses indicated appellant's insufficient problem resolution, specifically that he lacked insight into and minimized his criminal behavior, and his attempt to deflect responsibility for his past criminal conduct. Courts are "required to accord deference to the findings of the administrative agency that are substantially influenced by its opportunity to hear and see the witness[] and to have the 'feel of the case,' an opportunity which a reviewing court cannot enjoy." Trantino, supra, 166 N.J. at 200 (citation omitted).

Appellant's return to criminal activity after his earlier incarcerations also contributed to the Board's finding that there was a substantial likelihood appellant would submit to pressure once again and commit a crime if released on parole. The Board further relied on a psychiatric risk assessment evaluation that found appellant posed a medium risk of recidivism. No expert opinion supported releasing defendant. Cf. id. at 191 (finding the Board ignored earlier expert evaluations "all highly supportive of parole following halfway house placement," its own expert's finding that Trantino "had a 'low' likelihood of recidivism," and a large number of psychological evaluations "supportive of parole").

The Board also considered mitigating factors, including appellant's lack of infractions during this incarceration and his participation in behavior-specific programs, such as therapeutic and job skill programs. Appellant argues the mitigating factors show there is no substantial likelihood he would commit a crime if again released on parole. The Board considered the mitigating factors but ultimately found they were not enough to overcome the overwhelming evidence that appellant was likely to engage in future criminal behavior.

Appellant asserts that he presented an adequate parole plan, given that he is in his mid-seventies. His plan was premised on a promise of work in construction upon his release and a transition to a halfway house with no long-term housing solution proposed. The Board could properly find that this parole plan was inadequate because appellant's past behavior demonstrated that he requires a stable and supportive living arrangement. See N.J.A.C. 10A:71-3.11(b)(14).

Accordingly, the Board's decisions to deny parole and to set a sixty-month FET were not arbitrary, capricious or unreasonable and were supported by sufficient, credible evidence in the record. An inmate serving a sentence for kidnapping "shall serve 27 additional months," but that period can be increased if it "is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(a)(1), (d). Here, the Board reasonably found a twenty-seven-month period was clearly inappropriate, and sixty-months was appropriate due to appellant's failure to demonstrate "the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."

Affirmed.