B.F. 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NOT FOR PUBLICATION WITHOUT THE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-4441-04T14441-04T1

B.F.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

________________________________________________

 

Submitted October 24, 2005 - Decided

Before Judges Alley and C.S. Fisher.

On appeal from decision of the New Jersey State Parole Board, PN #416252.

B.F., appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Appellant is an inmate of the East Jersey State Prison, serving an aggregate nineteen-year sentence, imposed on January 19, 2001, for aggravated sexual assault, aggravated criminal sexual contact, and endangering the welfare of a child. The victim was appellant's fourteen-year old daughter.

On December 13, 2004, a two-member panel denied parole, indicating in its written decision as reasons for this disposition: appellant's prior criminal record; the increasingly serious nature of appellant's prior criminal activity; the fact that probation had previously failed to deter appellant; appellant's fourteen-year old daughter was his victim; that appellant had committed a minor infraction while incarcerated; appellant's lack of insight into his criminal behavior; and appellant's attempt to minimize his conduct, stating, "[he] doesn't get it. It seems to be all about him and not his victim."

Appellant sought the Parole Board's review of the panel's decision. On March 9, 2005, in upholding that decision, the Board rejected appellant's contentions, stating to him, in part, in its written decision:

The full Board concurs with the Panel's determination that you lack insight into your criminal behavior and that you minimize your conduct as evidenced by the Panel interview and documentation in your file. Regarding your statement that a Panel member exhibited a negative attitude toward you, there is no evidence on the record nor do you provide evidence to support your claim. A review of the tape recording of the Panel hearing revealed that the Panel conducted the hearing in a professional manner and did not demonstrate a negative attitude, prejudice or bias in your case. The Panel asked appropriate questions relevant to your case and allowed you ample opportunity to answer questions. In accordance with the Board's Code of Professional Conduct, the Panel appropriately solicited information in order to render an objective informed decision without being subjectively judgmental.

Regarding your claim that your wife was diagnosed with [multiple sclerosis] in 2003, is unable to work and meet the financial needs of the family, you provide no documentation to support your claim.

Based on a consideration of the facts cited above, the full Board has determined that the Adult Panel has documented, by a preponderance of evidence, that there is a substantial likelihood that you would commit a crime if released on parole at this time.

In his appeal, appellant argues that the Board's decision was not supported by sufficient credible evidence and that the Board erroneously failed to establish a future eligibility term (FET).

In reviewing a decision of the Board, we limit ourselves to an evaluation of whether the decision was arbitrary, capricious or unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). Such decisions are accorded a strong presumption of reasonableness. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div.), certif. denied, 135 N.J. 469 (1993). The burden of showing the decision was arbitrary, capricious or unreasonable rests upon the appellant. Id. at 304-05. When it is asserted that such an agency's decision is not supported by evidence, our task is to review the record and the agency's findings to determine whether the findings could have reasonably been reached on the credible evidence before the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We also defer to the expertise of the Board when it renders decisions in this field. Puchalski v. New Jersey State Parole Bd., 104 N.J. Super. 294, 300 (App. Div. 1969).

After careful review, and being mindful of the standards that guide our decision, we conclude that appellant's argument that the record does not contain sufficient evidence to support the Board's findings or conclusions is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
We lastly observe that a FET has since been established and, thus, appellant's argument in this regard has been rendered moot.

Affirmed.

The two-member panel later amended its decision, as the Board observed in its own decision, to add as a mitigating factor that appellant had attempted to enroll and participate in programs but that he was not admitted.

(continued)

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A-4441-04T1

November 7, 2005