DONALD PRATOLA 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NOT FOR PUBLICATION WITHOUT THE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-2004-04T22004-04T2

DONALD PRATOLA,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________

 

Submitted January 9, 2006 - Decided January 18, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from a Final Determination of the New Jersey State Parole Board.

Appellant filed a pro se brief.

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

PER CURIAM

In 1981, appellant Donald Pratola began serving a life sentence for the 1979 murder of Henry Rezemieniewski committed while Pratola and two others were engaged in an armed robbery of the victim's funeral home in Irvington. According to the victim's wife, who came upon the scene immediately after her husband was shot, Pratola was in possession a gun. He pointed the gun at her as well, but did not fire it. Appellant instead fled with his accomplices.

Following Pratola's conviction, the trial judge not only imposed a life sentence for the murder of Rezemieniewski, but also imposed consecutive terms of nine to ten years for possession of a weapon while committing the murder, and six to seven years for breaking and entering in an attempt to rob. We previously affirmed, in an unpublished opinion, an earlier denial of parole on July 30, 2003. Pratola v. New Jersey State Parole Board, Docket No. A-0304-03T1 (App. Div., October 12, 2004). Pratola herein appeals the final agency decision of the New Jersey State Parole Board (the Board) on November 3, 2004, which denied parole and established a thirty-six month future eligibility term (FET).

In his appeal, Pratola raises the following arguments for our consideration:

I. THE TWO MEMBER PANEL OF THE NEW JERSEY STATE PAROLE BOARD ERRED WHEN THEY USED INACCURATE INFORMATION OF CHARGES THAT WERE DISMISSED AGAINST PLAINTIFF AT MUNICIPAL COURT LEVEL IN 1976.

II. THE PAROLE BOARD ERRED WHEN IT FAILED TO CONSIDER ALL MENTAL HEALTH REPORTS OF MENTAL HEALTH EXPERTS WHEN CONSIDERING PLAINTIFF BE PAROLE[D] TO CERTAIN PROGRAMS.

III. THE TWO MEMBER PANEL OF THE NEW JERSEY STATE PAROLE BOARD ERRED WHEN THEY FAILED TO CONSIDER ALL THE MITIGATING FACTORS CONTAINED ON THE RECORD ON PLAINTIFF TO ESTABLISH A PAROLE DATE.

IV. THE TWO MEMBER PANEL OF THE NEW JERSEY STATE PAROLE BOARD ERRED IN VIOLATION OF A DELIBERATE INDIFFERENCE WHEN DECI[D]ING PLAINTIFF'S PAROLE HEARING OF AUGUST 12, 2004.

V. THE NEW JERSEY PAROLE BOARD HAS MADE THREE RECOMMENDATIONS THAT PLAINTIFF PRATOLA ENROLL BACK TO THE HALFWAY HOUSE/COMMUNITY RELEASE, AND THE CLASSIFICATION COMMITTEE HAS FAILED TO ACTIVATE PLAINTIFF TO HIS FULL MINIMUM CUSTODY STATUS TO FIT THE CRITERIA ONCE AGAIN FOR HIS COMMUNITY RELEASE STATUS.

VI. THE FULL BOARD ERRED WHEN IT FOUND THAT THE ADULT PANEL RECEIVED PLAINTIFF'S PRIOR CRIMINAL RECORD AND NOTED THAT ITS NATURE IS BECOMING INCREAS[ING]LY MORE SERIOUS.

VII. THE NEW JERSEY STATE PAROLE BOARD ERRED WHEN THEY BASED THEIR FACTS IN THEIR DECISION THAT THERE WAS A SUBSTANTIAL LIKELIHOOD THAT PLAINTIFF WOULD COMMIT AN OTHER CRIME IF RELEASED ON PAROLE AT THIS TIME.

We reject these arguments.

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), recognizing 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 Pratola's arguments are without sufficient merit to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and that the record contains sufficient credible evidence to support the Board's findings, which are entitled to our deference, R. 2:11-3(e)(1)(D).

 
Affirmed.

(continued)

(continued)

4

A-2004-04T2

January 18, 2006