WAYNE SMITH 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NOT FOR PUBLICATION WITHOUT THE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-2931-04T12931-04T1

WAYNE SMITH,

Appellant,

V.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

_____________________________

 
 

Argued on December 12, 2005 - Decided February 2, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from a Final Decision of the State Parole Board.

Mark J. Friedman argued the cause for appellant.

Christopher C. Josephson, Deputy Attorney General, argued the cause for Respondent (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Josephson on the brief).

PER CURIAM

Appellant inmate, Wayne Smith, appeals from a January 26, 2005, decision of the New Jersey State Parole Board (Board) denying him parole and establishing a thirty-six month Future Eligibility Term (FET). For reasons stated, we affirm.

On May 27, 1994, after accusations were made by appellant's two stepdaughters, ages five and eight, a Passaic County Grand Jury charged appellant in Indictment No. 94-05-0706, with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. Appellant denied the charges. On April 26, 1996, notwithstanding that the two stepdaughters recanted their statements, appellant was convicted, following a jury trial, of two counts of aggravated sexual assault, one count of sexual assault, and both counts of endangering the welfare of a child.

On November 21, 1996, he was sentenced to concurrent eighteen year terms, with eight year mandatory minimums for each count of aggravated sexual assault. The sexual assault conviction was merged with the convictions for aggravated sexual assault. On each conviction of endangering the welfare of a child, appellant was sentenced to eight years with a four year mandatory minimum term, to be served concurrently with the aggravated sexual assault convictions. Appellant was also ordered to comply with all applicable Megan's Law procedures, including no contact with the victims. Appellant became eligible for parole after serving seven years and eight months. A parole hearing was deferred pending an examination at the ADTC.

Between November 10, 2003, and April 29, 2004, appellant underwent psychological examinations by four different psychologists during which appellant continued to deny culpability for the crimes. On June 15, 2004, a two-member panel considered appellant's case. Appellant maintained his innocence at the hearing as he has done throughout the matter. He testified that the charges were not true, and the children had recanted their statements in the days following their initial allegations. Appellant also admitted that notwithstanding the no-contact condition of sentencing, he has continued to send the victims birthday cards through a third-party intermediary.

Appellant's prior criminal history consists of a 1991 conviction for simple assault and resisting arrest, a 1992 conviction for DWI, and a 1993 conviction for aggravated unlicensed driver. While in prison, appellant has not committed any infractions. He received excellent marks on pre-parole reports concerning his participation in work details as well as in a computer aide vocational program. Appellant's housing pre-parole report notes that he requires minimal supervision, is polite, and always offers to help. He has participated in programs such as behavior modification, parenting group, self-awareness program, re-entry class, Amer-I-Can Program and Alcoholics Anonymous.

A Victim Input Hearing was conducted on February 13, 2004. Contrary to appellant's protestation of innocence, both victims continued their assertions that they were sexually assaulted by the appellant.

On June 15, 2004, after considering appellant's case, the panel denied parole and set a thirty-six month FET. The panel concluded that "a substantial likelihood exists that you would commit a new crime if released on parole at this time." The panel based its decision on: 1) his prior criminal record; 2) the nature of criminal record becoming increasingly more serious; and 3) his insufficient problem resolution, including lack of insight into criminal behavior, denial of the crimes and minimization of conduct, as demonstrated by the panel interview and documentation in the case file. The panel noted that appellant's continued denial of the crimes, and lying raises the risk to re-offend. Lastly, they noted that appellant continues to have communications with the victims by sending them birthday cards in violation of the condition of sentencing. In mitigation, the panel found appellant was infraction free while in prison, had participated in institutional programs, and had average to above-average institutional reports. Appellant appealed. On January 26, 2005, the Board adopted the panel's decision, and this appeal followed.

On appeal, appellant argues that: 1) the record does not support the Board's decision that there is a substantial likelihood that he will commit another crime if released; and 2) his parole was denied, and he was assessed a maximum FET solely because he continues to deny culpability for the crimes.

This court will review a Parole Board's actions for arbitrariness and capriciousness. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001). Since there is a statutory presumption in favor of granting parole, a denial of parole will be regarded as arbitrary if it is not supported in the record by sufficient, credible evidence. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 42 (App. Div. 2003). Parole release decisions are best made by those with experience and expertise in the field. Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 368 (1973) (Sullivan, J., concurring). Decisions of whether to grant or deny parole are subjective and involve, in part, predictions as to future behavior of the inmate, requiring broad discretion in the decision making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div., aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). A Parole Board's expertise in parole decisions is given great weight, and its discretion is broad. O'Neal v. N.J. State Parole Bd., 149 N.J. Super. 174, 182 (App. Div.), appeal dismissed, 75 N.J. 590 (1977). Intervention is warranted only when the Parole Board has clearly and convincingly abused its discretion. Ibid. While the discretion afforded a Parole Board is broad, it is not unlimited. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971). A Parole Board must provide an inmate with a statement of the reasons for the denial of parole. Id. at 250. It is against these principles that we consider appellant's arguments.

Appellant contends that the evidence does not support the Board's finding that there is a substantial likelihood that he will commit another crime if released. We disagree.

N.J.S.A. 30:4-123.53 provides in pertinent part:

An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report filed . . . or developed or produced at a hearing . . . indicates by a preponderance of the evidence that the inmate has failed to cooperate in his . . . rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole . . . if released on parole at that time.

A condition of parole is that the parolee "refrain from committing any crime." N.J.S.A. 30:4-123.59b. Accordingly, the Board may deny an inmate parole if the Board has a reasonable expectation, based on a preponderance of the evidence, that the inmate will commit a future crime. In making its decision, the Board is required to consider twenty-three factors listed in N.J.A.C. 10A:71-3.11(b). Such factors include: "Nature and pattern of previous convictions" (No. 3); "Participation in institutional programs which could have led to the improvement of problems diagnosed at admission or during incarceration" (No. 8); "Statements by the inmate reflecting on the likelihood that he or she will commit another crime; the failure to cooperate in his or her own rehabilitation; or the reasonable expectation that he or she will violate conditions of parole" (No. 17); and "Statement or testimony of any victim" (No. 22). N.J.A.C. 10A:71-3.11(b).

Appellant admitted at the parole hearing that he communicated with the victims in violation of the no-contact condition of sentencing. While he continues to deny culpability for the crimes convicted, the record contains victim input statements confirming that appellant committed the crimes charged. The record also contains an assessment from one of the psychologists that appellant's "risk to act out in a sexually violent manner has not been significantly reduced." The Board properly considered evidence in reaching its decision. N.J.A.C. 10A:71-31.11(b).

The Notice of Decision (Notice) from the two-person panel discloses that the panel found appellant lacked credibility because of his denial of culpability, which is in sharp variance with other evidence in the record. The panel considered his lack of credibility as an indicator of risk to re-offend. The Notice also cites appellant's prior criminal history and nature of the crimes as reasons supporting denial of parole. The Panel also considered mitigating factors in appellant's favor, noting that appellant has been infraction free while he participated in institutional programs, and has received average to above average marks on institutional reports. We are satisfied that the Panel engaged in the proper analysis by considering the applicable factors required by the Administrative Code, N.J.A.C. 10A:71-3.11.

Appellant contends that, notwithstanding the factors relied upon by the Board in the Notice, he was denied parole and assessed a maximum FET solely because he continues to deny culpability for the crimes, citing the unreported case of De La Roche v. N.J. Parole Bd., No. A-2138-01 (App. Div. March 19, 2003).

An unpublished opinion does not constitute precedent, nor is it binding upon us, unless it is required to be followed by reason of res judicata, collateral estoppel, a single controversy doctrine, or similar principle of law. R. 1:36-3. However, the rule permits an unpublished opinion to be called to a court's attention as secondary research so long as the party using the unpublished opinion provides all parties and the court with a copy of the full text of the opinion, as well as any other favorable and unfavorable relevant unpublished material known to exist. Falcon v. Am. Cyanamid, 221 N.J. Super. 252, 261 n.2 (App. Div. 1987). Although not binding, we have considered the opinion in De La Roche, but find its facts distinguishable from the present matter.

In De La Roche, the inmate had been found guilty of shooting and killing his parents and two brothers, Eric and Ronald. De La Roche, supra, slip op. at 1. Immediately after the crimes were committed, De La Roche confessed to killing all four members of his family. He later recanted, contending that his parents and Eric had been shot by his brother Ronald. De La Roche contended that he shot Ronald solely as a consequence of Ronald's attacks on the other family members. De La Roche, supra, slip op. at 1-2. De La Roche maintained his innocence relating to the death of his parents and his one brother through his trial and prison term. He was denied parole by a two-member panel parole decision. De La Roche, supra, slip op. at 2. The reasons given were that he was "incarcerated for a multi-crime conviction, he had an institutional infraction in 1995, insufficient program participation, lack of insight into criminal behavior, denial of the crime, and lack of adequate parole plan." De La Roche, supra, slip op. at 3-4. On appeal to the full Board, the denial of parole was affirmed with the Board concurring with the panel's determination and "concluded that the `Adult Panel did document that a preponderance of evidence indicates a substantial likelihood that you would commit a crime if released on parole at this time.'" De La Roche, supra, slip op. at 4-5. DeLaroche appealed the Board's decision.

This court, after review of the various psychological evaluations and other matters in the record, remanded the matter to the Board for additional psychological evaluation[s] "that [are] directed specifically to the question of the likelihood of recidivism in light of defendant's failure to acknowledge complete guilt." De La Roche, supra, slip op. at 7. We held:

When all is said and done, the basis for denying parole stands four-square on defendant's failure to admit to all the murders. That failure is a legitimate consideration by the Parole Board, but the implications of it on the standard of review are not self-evident and are nowhere to be found in the present record. Logically, the consequence of defendant's failure to admit guilt, in light of the nature of his crimes, his lack of prior criminal involvement, and his otherwise apparent rehabilitation, is a matter for expert psychological analysis. If there is linkage between De La Roche's failure to admit full guilt and probable recidivism, it should be established through medical expertise.

[De La Roche, supra, slip op. at 6.]

The present facts are different. Appellant has a prior criminal record, which increased in severity, leading towards the present convictions; appellant continues to violate a direct order of court prohibiting him from having contact with the victims; the victims' impact statements contradict appellant's denial of culpability; and one of the psychologists determined that he is still at risk to act out in a sexually violent manner. De La Roche is not precedential in this matter.

Appellant also challenges the imposition of a thirty-six month FET, contending that the same is excessive and unsupported by the record. We conclude otherwise. The assignment of future parole eligibility dates is governed by N.J.A.C. 10A:71-3.21(a), which provide that "a prison inmate serving a sentence for . . . aggravated sexual assault . . . shall serve 27 additional months." The statute goes on to permit the term to be "increased or decreased by up to nine months when, in the opinion of the Board panel, the severity of the crime for which the inmate was denied parole and the prior criminal record or other characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-3.21(c). A Parole Board's actions enjoy a presumption of validity, which the challenger has the burden of overcoming. Alevras v. Delanoy, 245 N.J. Super. 32, 35-37 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991).

 
Here, pursuant to N.J.A.C. 10A:71-3.21(c), the Board chose to increase the standard twenty-seven month term by nine months, for a total of thirty-six months. The panel recommended that appellant avail himself of counseling "to get at the root of his denial and behavior." This decision is within the discretion of the Parole Board. Appellant has not carried the burden of showing that the Board's actions were arbitrary. Rather, the record contains substantial credible evidence to support the Board's findings and decision.

Affirmed.

N.J.S.A. 2C:7-1 to -19.

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A-2931-04T1

RECORD IMPOUNDED

February 2, 2006