VICTOR DEGROSS 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NOT FOR PUBLICATION WITHOUT THE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-0

VICTOR DEGROSS,

Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

_________________________

October 21, 2013

Submitted July 2, 2013 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the New Jersey State Parole Board.

Victor DeGross, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Victor DeGross, a State prison inmate, appeals from a June 29, 2011 final decision of the New Jersey State Parole Board (Board), denying him parole and establishing a 168-month future eligibility term (FET). We affirm.

DeGross is currently serving a forty-five-year term of incarceration, with a fifteen-year period of parole ineligibility, for thirteen counts of carjacking, which he committed over a three-week period between October and November 1995. These offenses were committed while DeGross was on parole from a previous crime. He pled guilty to the offenses in 1997. Prior to his most recent conviction, DeGross was previously convicted of robbery, which resulted in a seven-year indeterminate term in 1981. Following his parole on that offense, he was convicted of committing ten separate robberies and received a twenty-year term of incarceration. After serving nine years, he was granted parole in 1994. His parole was revoked in 1997, after committing the underlying offenses. He completed his parole violation while serving the present sentence.

During his present incarceration, DeGross has been adjudicated guilty of twenty-one disciplinary infractions, including fourteen infractions that were deemed serious. As a result of the infractions, he received a total of 1,625 days loss of commutation credits and 1,955 total days of placement in administrative segregation as sanctions.

DeGross became eligible for parole in November 2010. A two-member panel denied parole and referred the matter to a three-member panel for establishment of an FET in excess of administrative guidelines due, among other reasons, to his extensive and recurring criminal record, prior failed opportunities on parole and probation, and numerous institutional infractions. The three-member panel adopted the recommendations of the two-member panel and, on July 25, 2010 denied DeGross parole. The panel imposed a 168-month FET. The full Board affirmed the decisions of the two-member and three-member panels. The present appeal followed.

On appeal, DeGross argues that the Board's decision was not supported by the record and violated his due process rights with the exception of the 168-month FET, with which we disagree, we reject DeGross's arguments.

Judicial review of parole determinations is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff d, 135 N.J. 306 (1994). The actions of the Board, as an administrative agency, are presumed valid and reasonable. Alevras v. Delanoy, 245 N.J. Super. 32, 35 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991). Our review is also limited to a determination of whether the agency's 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 (1988). 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.'" Cestari, supra, 224 N.J. Super. at 547 (quoting 613 Corp. v. N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).

The Board's decisions are considered "highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Consequently, "the Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)), see also Greenholtz v. Nebraska Penal & Corr. Complex Inmates, 442 U.S. 1, 9-10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979) ("The parole-release decision . . . depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release.").

The Parole Act, as amended in 1979, provides that

[a]n adult inmate shall be released on parole at the time of parole eligibility, unless [the] information supplied [to the Parole Board] or developed or produced at a hearing . . . indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time.

[N.J.S.A. 30:4-123.53(a).]1

"The [Parole] Act thus posits the likelihood of future criminal conduct as the determinative test for parole eligibility and effectively establishes a presumption in favor of parole." In re Parole Application of Trantino, 89 N.J. 347, 355-56 (1982). Under this test, the burden is on the Board "to prove that the prisoner is a recidivist and should not be released." N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983).

"The question whether there is a substantial likelihood an inmate will commit another crime if released, although predictive of future conduct rather than a finding as to past conduct, is essentially factual in nature." N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). Accordingly, a reviewing court "must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (quoting Cestari, supra, 224 N.J. Super. at 547).

We are satisfied that there is sufficient evidence in the record to support the Board's finding that there is a substantial likelihood DeGross will commit another crime if released on parole at this time. The decision is supported by substantial credible evidence in the record of the number and seriousness of the criminal offenses he committed and the number and seriousness of his institutional disciplinary infractions.

In upholding the three-member panel's establishment of 168-month FET, the Board noted that DeGross's

prior criminal record is extensive and repetitive, presently incarcerated for a multi-crime conviction; nature of criminal record is increasingly more serious; current opportunity on parole revoked for the commission of new offenses; prior opportunities on probation have failed to deter criminal behavior; your institutional infractions were found to be too numerous, persistent, serious in nature, resulting in a loss of commutation time, detention and Administrative Segregation. Your most recent infraction was committed on November 25, 2009, for 254, refusing work assignment.

The Board additionally noted that during its questioning, DeGross "exhibited insufficient problem solving, specifically, that you lack insight into your criminal behavior and have not sufficiently addressed your substance abuse."

We are satisfied that the Board's determination fixing the 168-month FET, although lengthy, is well-grounded on this particular record and within the broad discretion for decision-making that the Board is legislatively charged with exercising. The decision was neither arbitrary nor capricious and was clearly supported by the record. We discern no basis to disturb the Board's determination.

Affirmed.

1 As amended in 1997, L. 1997, c. 213, 1, the Parole Act now provides that an inmate may be denied parole if the evidence before the Board "indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate [the] conditions of parole . . . if released on parole at that time." The Board's consideration of DeGross's application for parole was governed by the pre-amendment standard in effect at the time of his offenses in 1995. See Kosmin v. N.J. State Parole Bd., 363 N.J.Super. 28, 41 (App. Div. 2003).