RAYMOND TANGO 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NOT FOR PUBLICATION WITHOUT THE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-5206-05T25206-05T2

RAYMOND TANGO,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

_________________________________________________________

 

Argued October 15, 2007 - Decided

Before Judges Stern and C.L. Miniman.

On appeal from a final decision of the

State Parole Board.

Stephen M. Latimer argued the cause for

appellant (Loughlin & Latimer, attorneys;

Mr. Latimer, on the brief).

Christopher C. Josephson, Deputy Attorney

General, argued the cause for respondent

(Anne Milgram, Attorney General, attorney;

Nancy Kaplen, Assistant Attorney General,

of counsel; Mr. Josephson, on the brief).

PER CURIAM

This is an appeal from the final administrative determination of the Parole Board, embodied in its letter of May 5, 2006, denying parole and establishing a 216-month future eligibility term ("FET"). The full Board concluded that appellant "would commit a crime if released on parole and that the reasons for denial of parole pursuant to N.J.A.C. 10A:71-3.11 were considered." The Board also concluded that specific and sufficient reasons were given by the three member panel for a FET outside the guidelines. Appellant contends that "the denial of parole and the imposition of an eighteen year future eligibility term are not supported by the whole record."

Appellant's sentence was imposed in July 1981. Appellant received a sentence of life imprisonment with twenty years to be served before parole eligibility for murder and a concurrent seven year sentence for a weapons offense. These crimes were committed while on bail for aggravated assault upon a tow truck driver who had impounded his car, and appellant received a concurrent sentence for that crime in November 1982.

While serving his sentence, appellant participated in an unlawful conspiracy to violate the drug laws, and in June 1994 was given a consecutive sentence of nine years, with four to be served before parole eligibility, for that charge.

Appellant relies on a report prepared in September 1999 by Dr. Alan M. Goldstein, a certified psychologist. Dr. Goldstein interviewed appellant for four and one-half hours, reviewed documents and records, and administered tests which reflected "a low risk of recidivism." Appellant was found to have developed a "considerable degree of insight" and "coping skills" to "control his impulsiveness," and to be "compassionate, caring and helpful." According to Dr. Goldstein, appellant's "need to please others and to avoid conflicts significantly reduces the likelihood of impulsive acting-out and/or recidivism." In sum, Dr. Goldstein concluded that because appellant "developed coping skills which are necessary to avoid the impulsiveness . . . his motivation to remain free and to establish a close relationship with family members and friends" was a factor which "will serve as a major controlling influence against the likelihood that he would act out aggressively or engage in criminal activities."

Dr. Goldstein also reviewed and relied on letters of support from family, friends and corrections officers. However, the report was prepared in 1999, after eighteen years of incarceration, in connection with a clemency petition, and was later presented to the hearing panel and Board during the parole process. There was reference in the Parole Board's decision to the fact it was advised that Dr. Goldstein was "in the process of preparing a supplemental evaluation," but the record reflects no such submission.

A report by Dr. Kevin Amory prepared six years later, in January 2005, was relied on by the Board.

It is true, as appellant asserts, that the Board did not expressly state why it gave more credence to Dr. Amory than Dr. Goldstein. However, six of appellant's twenty-seven institutional infractions occurred after Dr. Goldstein prepared his evaluation, and while none of those involved asterisk offenses, his institutional record could not be properly characterized, as reported by appellant to Dr. Goldstein, as involving "a small number of minor disciplinary charges."

As the murder occurred on October 16, 1980, and defendant was sentenced to life imprisonment on January 14, 1981, this case is governed by the parole law applicable to offenses which occurred between the effective date of the Code of Criminal Justice, on September 1, 1979, and the date on which the sentencing provision with respect to the crime of murder was amended, effective September 6, 1982. See Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000); see also Trantino v. N.J. State Parole Board, 166 N.J. 113, 197, modified, 167 N.J. 619 (2001). By virtue of N.J.S.A. 2C:11-3 in effect at the time of defendant's offense, a judge could impose a sentence for the crime of murder of ten to thirty years, with up to fifty percent thereof to be served before parole eligibility, or thirty years with fifteen years to be served before parole eligibility. See N.J.S.A. 2C:11-3 (L. 1979, c. 178, 21). Alternatively, the trial court had discretion to impose an extended sentence of life imprisonment under N.J.S.A. 2C:43-7, with or without a twenty-five year period of parole ineligibility. See State v. Maguire, 84 N.J. 508, 519-26 (1980); see also State v. Pennington, 154 N.J. 344, 353-60 (1998) (making clear that imposition of the twenty-five year period of parole ineligibility on a discretionary extended term of life imprisonment was not mandatory).

Appellant received a sentence of life imprisonment with a parole ineligibility term of twenty years. Accordingly, under the Parole Act, appellant became "primarily eligible for parole after having served" the twenty year mandatory minimum term. N.J.S.A. 30:4-123.51(b). See L. 1979, c. 441, 7. The Parole Act of 1979 also provided for "presumptive parole." See N.J.S.A. 30:4-123.53(a); In re Application of Trantino, 89 N.J. 347, 355-56 (1982); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). Furthermore, the Act, as it relates to appellant serving a Title 2C sentence imposed at the time it was in this case, "place[d] the burden on the State '. . . to prove that the prisoner is a recidivist and should not be released.'" Cestari, supra, 224 N.J. Super. at 547 (quoting N.J. Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)).

In any event, appellant was entitled to:

be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to [N.J.S.A. 30:4-123.54] or developed or produced at a hearing held pursuant to [N.J.S.A. 30:4-123.55] indicate[d] by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time.

[N.J.S.A. 30:4-123.53(a) (see L. 1979,

c. 441, 9).]

We are nonetheless satisfied that the Board did not abuse its considerable discretion in denying parole and establishing the 216-month FET. See, e.g., Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41-42 (App. Div. 2003). It is undisputed that appellant committed twenty-seven institutional infractions, lost 870 days of commutation credits and spent 630 days in administrative segregation. As already noted, six of his disciplinary infractions occurred after Dr. Goldstein's evaluation was performed. Dr. Goldstein's report was prepared for the clemency petition in 1999 and was not updated, notwithstanding the additional institutional infractions. In addition, there was no then-current psychological evaluation to counter Dr. Amory's evaluation, and the institutional record included a serious CDS offense prosecuted criminally, which could be considered by the Parole Board in terms of the likelihood of recidivism, even though it resulted in a consecutive nine year sentence which delayed parole eligibility. Moreover, the three-member panel expressly recognized the existence of the presumptive twenty-seven month FET and gave specific reasons for nevertheless imposing the 216-month term. Accordingly, we find no basis for disturbing the final administrative determination.

Affirmed.

 

The various crimes were reviewed at the two-member parole hearing of April 22, 2005, and in the decision of the three-member panel which concluded that appellant's criminal history record had become "increasingly more serious." The three-member panel also reviewed appellant's institutional disciplinary record of twenty-seven infractions, including nine asterisk offenses.

In response to the reference to the possibility a supplement would be presented, the Board stated it "must only look at the record, as it existed at the time of the hearings." We need not address this statement, as the record does not include the preparation or submission of a supplemental report. But see Cestari v. Parole Board, 224 N.J. Super. 534, 544-45 (App. Div.), certif. denied, 111 N.J. 649 (1988); N.J.A.C. 10A:71-4.3(g).

We have reviewed the appellant's confidential appendix which reflects that appellant has received and reviewed, among other things, Dr. Amory's "in-depth psychological evaluation," following his interview of appellant on January 16, 2005, the Union County Prosecutor's letter of March 24, 2005 and the "Confidential Material" for "the Parole Board Only" and attachments thereto, noting why the Board treated the in-depth psychological evaluation as confidential.

As this fact is conceded at argument before us, we need not review the constitutional principle that a parole standard amended after the date of offense or sentencing cannot be applied to this case.

Apparently, neither the State nor appellant ever challenged the length of the parole ineligibility term for the murder conviction.

(continued)

(continued)

8

A-5206-05T2

November 15, 2007