MICHAEL IPPOLITI 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NOT FOR PUBLICATION WITHOUT THE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-5298-09T3

MICHAEL IPPOLITI,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

Argued April 11, 2011 Decided July 29, 2011

Before Judges Alvarez and Ostrer.

On appeal from the New Jersey State Parole Board.

Peter M. Weiner argued the cause for appellant.

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Michael Ippoliti, an Adult Diagnostic and Treatment Center (ADTC) inmate, appeals from the May 26, 2010 final administrative decision of the Parole Board (Board) affirming a two-member Board Panel's (Panel) decision denying him parole and imposing a twenty-month future eligibility term (FET). We affirm.

After a trial by jury, Ippoliti was convicted of one count of second-degree criminal attempt to commit a sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(4); second-degree attempt to lure or entice a minor into a motor vehicle, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-6; third-degree attempt to endanger the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(B). On our remand, Ippoliti was resentenced to concurrent terms resulting in an aggregate sentence of seven years on March 12, 2009.

The charges stem from Ippoliti's involvement with a sting operation conducted by the Bergen County Prosecutor's Office. Briefly, Ippoliti made contact via the internet with an individual he believed was a thirteen-year-old girl named "Julie." Ippoliti instigated sexual exchanges with her, including asking if she engaged in certain sexual activities and raising specific questions regarding her involvement with these activities.

Ippoliti arranged to meet Julie, saying they could just "hang out, shop and let other things fall into place . . . I am into whatever you can be . . . . Nothing freaky I assure you." Ippoliti suggested that he obtain a motel room for them to use.

After these plans were made, Ippoliti instructed Julie how to delete the files related to her contact with him from her Yahoo Messenger account. The day before the meeting was scheduled to take place, he wrote "if you want to rape me, you can go ahead and rape me, is that what you want me to say?"

At the agreed-upon time, Ippoliti appeared at the meeting place and was arrested. He thereafter admitted that he believed Julie was in fact a thirteen-year-old girl and acknowledged having sexually explicit internet exchanges with her. Ippoliti also said he hoped Julie would perform oral sex upon him during their encounter.

Ippoliti was not found to be a repetitive and compulsive offender requiring treatment at the Adult Diagnostic and Treatment Center, although he is currently serving his sentence there. See N.J.S.A. 2C:47-1. The psychological evaluation completed prior to his parole review indicated he presented a low risk of recidivism.

The two-member Panel conducted Ippoliti's parole hearing via video conferencing. When asked directly during the hearing, Ippoliti could not explain the reasons he committed the offense or even the reasons he would want to meet a thirteen-year-old girl. He denied, however, intending to engage in a sexual relationship with Julie, directly contradicting the internet conversations recorded by the Bergen County Prosecutor's Office and his own statements after arrest.

When asked repeatedly by the Panel members to explain his conduct, Ippoliti said he was "just curious" and that, although he had exercised terrible judgment, he never used sexually explicit language. He suggested his involvement with Julie was a result of him "feel[ing] real bad for her, saying she had no relationship with her father." He also claimed that he first asked to speak with Julie's mother when the two commenced their internet exchange.

The Panel found Ippoliti inappropriately minimized his behavior, lacked insight into his own conduct, and had engaged in "insufficient problem resolution." The Panel also acknowledged the mitigating factors relative to his situation: his lack of a prior criminal history, participation in such institutional programs as were available to him, and his attempts to enroll in other programs. Overall, however, the Panel considered Ippoliti's responses, which contradicted the record, made him unprepared for release.

In the Board's opinion, the Panel considered all relevant information and fully documented and supported its decision, as required by N.J.A.C. 10A:71-3.11 and N.J.A.C. 10A:71-3.18(f). The Board therefore affirmed the Panel's decision that, by a preponderance of the evidence, there was a reasonable expectation Ippoliti would violate his conditions of parole if released.

On appeal, Ippoliti alleges the Panel's decision was arbitrary and capricious and based on erroneous facts. He also claims the Panel inhibited his ability to present evidence, that a Panel member was prejudiced or biased, and that it failed to consider material evidence.

We apply the same standard to parole decisions as to other agency determinations. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998) (Trantino IV). Such decisions "should not be reversed by a court unless found to be arbitrary . . . or an abuse of discretion[.]" Ibid. (internal citations omitted). The Board's decisions regarding parole are highly individualized, and it has significant discretionary power in making release decisions. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI).

A parole denial is reviewed on appeal against a three-part standard. First, we determine whether the agency's action violated express or implied legislative policy. Trantino IV, supra, 154 N.J. at 24. Second, we assess whether the record contains substantial evidence to support the agency's decision. Ibid. Finally, we evaluate whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not have been reasonably made. Ibid.

Ippoliti first argues that the Panel made mistakes of fact which, although not themselves requiring reversal, highlight the Panel's and ultimately, the Board's failure to give his application the individualized consideration to which he was entitled. The errors include a reference by a Panel member to Ippoliti having "pled guilty." This mistake was corrected in the next sentence, however, when the member stated that the Panel was "not here to retry the case." The second example is the Panel's incorrect reference to Ippoliti's participation in a group for stress management. These discrepancies, even if errors, are too inconsequential to reveal anything at all about the hearing process, much less to establish a failure to give Ippoliti's parole status fair consideration.

Nor do we agree the record supports the claim that Ippoliti was denied the opportunity to present evidence. He contends this denial was manifested when, although he had already answered the Panel's questions, he was pressed for additional information on several occasions. But the Panel members' efforts at eliciting more precise and direct responses did not deprive Ippoliti of the opportunity to present evidence. To the contrary, the Panel repeatedly signaled that he needed to provide more complete statements and more carefully consider his answers. In short, they provided ample opportunity for him to present evidence, but Ippoliti did not avail himself of those openings.

Ippoliti also claims one of the Panel members had a bias against him because the member asked him to explain, in effect, the reasons a married father of four would have arranged to meet someone he met on the internet, even if he thought the person was eighteen and not thirteen. From the question, Ippoliti infers that the Panel member "frown[ed]" upon relationships outside of marriage between of-age individuals. To the contrary, the question appears designed to give Ippoliti an additional opportunity to expand the discussion of his motivation.

It is also contended this same Panel member has a daughter between the ages of six and eight who has a Facebook page and that, as a result, she should have recused herself. This argument is inappropriate and unavailing. Nothing in the record factually supports the claim. Furthermore, even if the information had been contained in the record, the circumstances simply do not constitute a basis for recusal. The argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Ippoliti also contends the Board's affirmance failed to consider favorable material evidence which demonstrated insight into the crimes he committed. The record does not support this contention either. In fact, Ippoliti made statements which attempted to sanitize his conduct, ultimately attributing his desire to meet Julie to curiosity and an exercise in poor judgment. These statements are not material evidence that he has gained an understanding of the nature of his criminal conduct. While the psychological report indicated that Ippoliti is at low risk to reoffend, that report alone would be an insufficient basis for rejecting the Panel's decision. The Panel does not abdicate its legal obligation to make an independent judgment based solely on a favorable psychological report.

Ippoliti's repeated evasions informed the Board's decision, which accords with applicable law and legislative policies. The Board's observation that Ippoliti lacked insight and minimized his conduct was amply supported by substantial evidence. It was Ippoliti's presentation during the hearing, nothing more or less, which resulted in the reasonable expectation that he would violate his conditions of parole if released.

The Board's decision was amply supported by substantial credible evidence on the record. We perceive no basis for a downward adjustment. See N.J.A.C. 10A:71-3.11(a), (b). Predictions about an inmate's future behavior are indeed fraught with subjectivity, mandating broad discretion in the Board's 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). The Board exercised its legislative mandate properly. The decision was reasonable, not arbitrary and capricious as Ippoliti alleges.