EUGENE C. LUCENTE 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NOT FOR PUBLICATION WITHOUT THE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-6370-03T36370-03T3

EUGENE C. LUCENTE,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

__________________________________________________________

 

Submitted December 19, 2005 - Decided January 19, 2006

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the final decision of the New Jersey State Parole Board, Notice of Decision No. 297342.

Eugene C. Lucente, appellant pro se.

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

PER CURIAM

Eugene Lucente is an inmate of Mid-State Correctional Facility. He is presently serving two consecutive fifteen-year terms of imprisonment for aggravated sexual assault and endangering the welfare of a child.

Lucente became eligible for parole after serving six and one-half years. On January 2, 2004, a hearing officer reviewed his case and referred the matter to a two-member board panel. On January 30, 2004, the two-member panel denied parole and established a thirty-six month future eligibility term (FET). The panel based its decision on: Lucente's prior criminal record; the fact that the offenses he had committed had become increasingly more serious; that he was presently incarcerated for a multi-crime conviction; that the prior opportunity of community supervision failed to deter future criminal behavior; that Lucente lacked insight into his criminal behavior and minimized his conduct, as demonstrated by, among other things, the panel interview; and the absence of an adequate parole plan. The panel also observed that there were mitigating factors, such as the facts that appellant had remained infraction-free, had participated in programs, had average to above average institutional reports, and had attempted to enroll and participate but had not been admitted to other programs.

Lucente appealed to the full board which, on June 16, 2004, affirmed the decision of the two-member panel. Lucente then filed a notice of appeal, seeking our review of this final agency decision and raising the following arguments for our consideration:

I. INSTITUTIONAL RECORD CARRIES MUCH WEIGHT THE PAROLE BOARD DECISION [DID NOT CONSIDER] APPELLANT[']S EXEMPLARY PRISON RECORD AND NUMEROUS PROGRAMS COMPLETED THAT WERE GEARED TOWARD REHABILITATION AND SELF-IMPROVEMENT AND CHARGE FREE HISTORY FOR SEVEN AND A HALF YEARS WHILE INCARCERATED AND HAS SERVED THE PUNITIVE ASPECTS OF SENTENCE[.] PAROLE PLANS WERE ADDRESSED BY APPELLANT. APPELLANT CONTACTED FRIENDS, RELATIVES AND OTHER RESOURCES PRIOR TO PAROLE HEARING. PAROLE PLANS WERE DISCUSSED WITH PAROLE COUNSELOR. APPELLANT HAS STRONG SUPPORT GROUPS IN PLACE IN HIS COMMUNITY, WITH FINANCIAL SUPPORT AND SPIRITUAL SUPPORT.

II. THE PAROLE BOARD USED ARBITRARY, UNJUSTIFIED AND UNSUBSTANTIATED REASONS FOR PAROLE DENIAL BASED ON FACTS UNDETERMINED AND NOT RELEVANT TO PAROLE[.] HEARSAY EVIDENCE [OF] UNFOUNDED CLAIMS, UNPROVEN AND UNSUBSTANTIATED FACTS [WERE] USED BY PAROLE BOARD IN THEIR DECISION AND DETERMINATION TO DENY APPELLANT PAROLE.

III. PAROLE BOARD BASED [ITS] DECISION AND DETERMINATION OF THE SERIOUSNESS OF CRIME, ARBITRARY TO CONSTITUTIONAL LAW AND [PROVIDED] NO OTHER JUSTIFICATION.

IV. ITEMS COMPRISING RECORD WERE NOT SUPPLIED TO APPELLANT. RECORD[S] MARKED CONFIDENTIAL WERE WITHHELD EVEN THOUGH . . . THEY WERE USED IN DECISION TO DENY PAROLE TO APPELLANT.

V. PAROLE BOARD TRIED TO INTIMIDATE APPELLANT INTO JEOPARDIZING HIS FIFTH AMENDMENT RIGHTS TO SELF-INCRIMINATION, BY UNPROFESSIONAL ACTIONS.

VI. APPELLANT CANNOT DEFINE OR ADDRESS ISSUES OF PAROLE DENIAL BASED ON CONFIDENTIAL INFORMATION NOT AVAILABLE TO APPELLANT. IT IS UNCONSTITUTIONAL TO WITHHOLD EVIDENCE WHICH CAN BE REFUTED. APPELLANT HAS A CONSTITUTIONAL RIGHT TO ANY INFORMATION USED BY PAROLE BOARD IN ITS DETERMINATION TO KEEP PRISONER INCARCERATED AND INCREASE HIS SENTENCE ON THE PUNITIVE ASPECTS.

VII. APPELLANT HAS SERVED THE PUNITIVE ASPECTS OF HIS SENTENCE. THE PAROLE BOARD ERR[ED] IN IT[S] DETERMINATION OF . . . ITS 36 MONTH FET.

We find no merit in any of these contentions or those raised in the reply brief submitted by Lucente on December 6, 2005.

In reviewing the final decision of a state administrative agency, our function is to review the record and determine whether the agency's factual findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1998). We will set aside an agency decision only "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." 613 Corp. v. N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986).

When applying these standards to the decisions of the parole board, the Supreme Court has recognized that such decisions represent highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001); Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973). Consequently, it is understood that the board "has broad but not unlimited discretionary powers" in reviewing an inmate's application. Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971). Such a decision represents a "discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done." Greenholtz v. Nebraska Penal & Corr. Complex Inmates, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979).

After carefully reviewing the record, we are satisfied that the board's decision adhered to all these concepts and its findings are entitled to our deference.

 
Affirmed.

(continued)

(continued)

5

A-6370-03T3

RECORD IMPOUNDED

January 19, 2006