JOSE FLORES 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NOT FOR PUBLICATION WITHOUT THE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

JOSE FLORES,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

_________________________________

November 3, 2016

Submitted October 25, 2016 Decided

Before Judges Messano and Espinosa.

On appeal from the New Jersey State Parole Board.

Jose Flores, appellant pro se.

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

PER CURIAM

Defendant appeals from a final decision of the New Jersey State Parole Board (Board) denying him parole and imposing a sixteen-month future eligibility term (FET). We affirm.

Defendant pled guilty to second-degree conspiracy to facilitate human trafficking, N.J.S.A. 2C:5-2, 2C:13-9a(2). He was sentenced to five years' incarceration in August 2014 and became eligible for parole in January 2015.

The standard applicable to the parole determination here is contained in N.J.S.A. 30:4-123.53(a), which provides the inmate shall be released on parole unless "by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time."

After an initial hearing before a hearing officer, this matter was referred to a two-member Board panel in December 2014. The panel determined there was a reasonable expectation defendant would violate conditions of parole if released. The panel noted defendant suffered from a lack of insight into his criminal behavior, that he "does not really understand the impact of his role in the human trafficking business saw his 'girls' as happy and not being forced to work." The panel also cited defendant's prior criminal record among the reasons for denial. The panel found the following mitigating factors: no prior criminal record or minimal criminal record,1 average to above average institutional reports and a risk assessment evaluation of 17. The panel also noted defendant was subject to an immigration detainer. It denied defendant parole, imposed a sixteen-month FET and suggested defendant participate in behavior modification.

Defendant appealed this decision and the Parole Board affirmed the denial of parole and the sixteen-month FET. In this appeal, defendant presents the following issues

POINT I

THE APPELLANT RECORD DOES NOT SUPPORT THE BOARD'S DECISION TO DENIAL PAROLE AND ESTABLISH A SIXTEEN (16) MONTH FUTURE ELIGIBILITY TERM. THE NEW F.E.T. SHOULD BE REVERSED AND MR. FLORES SHOULD BE GRANTED PAROLE IMMEDIATELY.

POINT II

THE PAROLE BOARD USED INACCURATE INFORMATION IN DENYING PAROLE AND IMPOSING A SIXTEEN (16) MONTH FUTURE INELIGIBILITY TERM, CONTRARY TO NEW JERSEY ADMINISTRATIVE REGULATIONS.

Our review of the Board's decision is limited. The Board's decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001), (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). We apply the same standard of review as that applicable to other administrative agency decisions, Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24-25 (1998), and do not reverse a Board decision unless we find it to be arbitrary or an abuse of discretion. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971); Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (App. Div. 2005).

We may reverse an agency's decision if the findings on which it is based are not supported by substantial, credible evidence in the record. Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48, (2007). Defendant argues that the Board used "inaccurate information" and failed to consider "[s]ignificant information" in making its determination to deny him parole. However, he has failed to articulate what the "inaccurate" or "significant" information is. In fact, several of the paragraphs in this argument refer to the evidence regarding "Mr. Lee," suggesting that the passages have been lifted verbatim from someone else's appellate brief. This argument therefore lacks merit.

N.J.A.C. 10A:71-3.11 sets forth the factors to be considered at a parole hearing. The Board's decision was explicitly based upon factors enumerated in the regulation. Defendant has failed to show that any of the factors relied upon were not supported by the evidence or that the Board failed to consider any factor for which there was evidentiary support. In short, the Board did not abuse its discretion in determining that, by a preponderance of the evidence, "there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time." N.J.S.A. 30:4-123.53(a).

Affirmed.

1 There is some inconsistency in the record. At one point, it is noted that the present offense was defendant's only known conviction and another record states he has a "[m]inimal offense record." In his appellate brief defendant referred to "prior offense's [sic] which are apart [sic] of his past." As a result, we conclude there was a basis in fact for the Board to rely upon a minimal prior record in its decision.