EDWARD ALFANO 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NOT FOR PUBLICATION WITHOUT THE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-4539-05T5

EDWARD ALFANO,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_________________________________________

 

Submitted March 27, 2007 - Decided May 21, 2007-

Before Judges Weissbard and Lihotz.

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

Edward Alfano, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

Edward Alfano, a state prison inmate presently serving a ten-year sentence following his conviction on charges of aggravated sexual assault, sexual assault, and endangering the welfare of a child, appeals from a final decision of the State Parole Board (the Board) which affirmed a Board panel's decision denying parole and establishing an eighteen-month future eligibility term (FET). We affirm.

Defendant was sentenced on February 1, 2001, although his offense took place, at the latest, in May 1992, and he was indicted in September 1995. The long period between indictment and conviction resulted from a series of mistrials. We affirmed defendant's conviction in an unpublished opinion filed on May 23, 2003.

Defendant became eligible for parole in June 2005. On February 17, 2005, a Board hearing officer conducted defendant's initial hearing and referred the case to a two-member panel. On June 16, 2005, the two-member panel conducted defendant's hearing, denied parole and set an eighteen-month FET. After denial of defendant's request for reconsideration, he appealed to the full Board. By letter of April 17, 2006, the full Board affirmed the panel decision.

In a rambling pro se brief, defendant contends that the factors cited by the panel, and affirmed by the full Board, do not support the denial of parole and FET. Some of defendant's arguments have merit, but not enough to overturn the Board's decision.

The panel noted the following factors in support of its decision: (1) "prior criminal record," (2) "prior incarceration did not deter criminal behaviour," and (3) "insufficient problem resolution. Specifically, lack of insight into criminal behaviour, denial of crime, minimizes conduct, and substance abuse problem has not been sufficiently addressed." Prior to the hearing, at the hearing, and thereafter, defendant denied that he had ever been previously incarcerated. Yet, despite his protests, the panel persisted in citing this factor. Finally, defendant's assertion was checked and found to be valid. In its April 17, 2006 letter, the full Board agreed that prior incarceration had been incorrectly cited. However, the Board observed that the panel had noted defendant's denial and, therefore, concluded that "this information is not significant enough to mandate disturbing the Panel's decision." We consider the Board's dismissal of defendant's complaint to be too cavalier. Indeed, because the full Board reviews the panel's decision, the much better course would have been to remand the matter to a new panel for consideration anew.

The panel cited defendant's prior criminal record. Defendant had a 1977 disorderly persons offense in New York - downgraded from a charge of Criminal Impersonation - for which he received a fine of $50 or ten days in custody. He apparently paid the fine. This minor offense was fifteen-years old when defendant committed the sexual assaults and was nearly thirty-years old at the time of his parole hearing. We are of the view that this conviction was so minor and so remote as to hardly warrant consideration.

In addition, the panel cited defendant's insufficient efforts to address his substance abuse problem. In his pre-sentence report, when defendant was fifty-three-years old, he admitted to use of marijuana daily from the time that he was eighteen-years old until he was thirty-nine, and to use of cocaine daily from age thirty-two to thirty-nine. Defendant asserts that his substance abuse problems, which ended in 1980, are twenty-five years in the past. The State's justification for use of this factor in denying parole is entirely unpersuasive.

Thus, two of the factors cited by the panel (prior conviction and substance abuse), had no support in the record and the third (prior criminal record), was so weak as to approach insignificance.

Nevertheless, and despite our misgivings with the panel's and Board's decision, the denial of parole is still sustainable based on the overriding factor relating to defendant's insight into his criminal behaviour based on his denial of the crime and minimization of his conduct. These critical findings are well-supported by the record. Defendant claims he is innocent and therefore cannot admit to criminal conduct so as to demonstrate appropriate recognition of his harmful behavior. Defendant is entitled to maintain his innocence, but at some point the justice system must consider the matter final and defendant must accept the consequences of his denial. That time has now passed. Defendant contends that he will not incriminate himself and points to a pending post-conviction relief (PCR) application. However, we have determined that defendant's last PCR denial was affirmed on August 3, 2006, after his brief on this appeal was submitted. In any event, once defendant's conviction was affirmed on direct appeal, his Fifth Amendment right concerning these offenses evaporated. Lewis v. Dep't of Corr., 365 N.J. Super. 503, 506 (App. Div. 2004). Thus, defendant remains silent at his peril.

In deciding whether defendant is likely to commit a crime if released on parole, N.J.S.A. 30:4-123.53(a), the Board's conclusion that he lacks insight into the behavior that led to his offenses, so as to avoid that behavior in the future, is entitled to considerable, indeed decisive weight. As the

State points out, the confidential psychological evaluation, conducted at the Adult Diagnostic and Treatment Center, which we have reviewed, supports the Board's conclusion, rather than, as defendant believes, undermining it.

Our scope of review is limited. Parole Board determinations are not to be reversed unless they are arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). When reviewing the decision of a state agency, such as the Parole Board, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We must affirm unless the determination by the Board "'went so far wide of the mark that a mistake must have been made.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988) (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).

The decision of a parole board involves "'highly individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Such decisions represent 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) (quoting Kadish, The Advocate and the Expert --Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 813 (1961)). 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).

Despite our misgivings over the Board's use of several factors which were inapplicable or inappropriate, we conclude that the record, stripped of those factors, supports the Board's decision affirming the panel determination of parole denial and its imposition of an FET nine months less than the presumptive, which was in this case, twenty-seven months. See N.J.A.C. 10A:71-3.21(a)(1).

 
Affirmed.

(continued)

(continued)

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A-4539-05T5

May 21, 2007