MICHAEL S. JANOWSKI 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NOT FOR PUBLICATION WITHOUT THE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

MICHAEL S. JANOWSKI,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

__________________________________

February 21, 2014

Submitted January 23, 2014 Decided

Before Judges Grall and Accurso.

On appeal from the New Jersey State Parole Board.

Michael S. Janowski, appellant pro se.

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

PER CURIAM

This is an appeal from a denial of parole. The inmate, Michael S. Janowski, completed service of concurrent five-year sentences for first-degree robbery, N.J.S.A. 2C:15-1, which were both subject to a period of parole ineligibility and a five-year period of parole supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.1 A NERA-parole supervision term is part of every NERA sentence, as is confinement for a period no longer than the parole supervision term if a NERA parole is revoked. See generally State v. Friedman, 209 N.J. 102, 120 (2012); State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000). Janowski, however, did not complete service of his concurrent five-year terms of NERA-parole supervision, and consequently parole was revoked.

Janowski's NERA parole was violated for drug use despite a condition of parole prohibiting it. Suspecting that his urine would test "dirty," Janowski brought a "clean" urine sample to the parole office intending to submit that sample rather than his own. Once at the parole office, however, Janowski abandoned his plan. He discarded the "clean" sample and instead signed an admission to using drugs in violation of a condition of his parole.

Janowski's drug use is a longstanding problem. Indeed, at the time of sentencing, the judge included a recommendation for placement of Janowski in a drug treatment facility in the judgments of conviction, and his presentence report reflects that Janowski acknowledged a history of drug and alcohol abuse that commenced when he was about eleven years old.

Janowski's convictions for robbery were his most serious convictions, but they were not his first. One of the robberies was committed in 2003 and the other in 2004. Janowski had two prior convictions for indictable offenses one for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and one for third-degree receiving stolen property, N.J.S.A. 2C:20-7. In addition, Janowski had nine prior municipal court convictions.

On appeal, Janowski presents the following arguments in his opening brief:

I. THE BOARD VIOLATED APPELLANT'S RIGHTS

WHEN IT FAILED TO TAKE INTO CONSIDERATION FAVORABLE FACTS CONTAINED IN APPELLANT'S WHOLE RECORD.

II. THE BOARD'S FAILURE TO ADHERE TO POLICY

VIOLATED APPELLANT'S DUE PROCESS RIGHTS AS WELL AS THE NEW JERSEY FAIRNESS AND RIGHTNESS DOCTRINE.

III. THE USE OF THE "LEVEL OF SERVICE

INVENTORY-REVISED (LSI-R) [RISK ASSESSMENT]" BY THE BOARD TAINTED THE BOARD'S FINDINGS AND VIOLATED DUE PROCESS.

In his reply brief, Janowski also claims a denial of due process based on the Parole Board's (Board) consideration of his criminal history record, prior participation in a halfway house, revocation of his parole and risk assessment. There is no question that the presentence report, which included his criminal history, and his psychological evaluation, which included his risk assessment, were considered but not disclosed to Janowski in the course of the parole proceeding.

With this issue in mind, we turn to the facts and reasons upon which the parole panel and the full Board based the denial. Despite a favorable recommendation from the hearing officer, the two-member panel denied parole and imposed the presumptive future parole eligibility term for a person serving a sentence for robbery, twenty-three months. See N.J.A.C. 10A:71-3.21(a)(2). On Janowski's administrative appeal, the full Board concurred with the panel's decision.

Because the robberies were committed after 1997, the panel and the Board had the authority to deny parole if it found that a preponderance of the evidence established "a reasonable expectation that" he would "violate conditions of parole . . . if released on parole at that time." N.J.S.A. 30:4-123.53a. In finding that reasonable likelihood, the panel and the Board must base their decisions "on the aggregate of" the pertinent factors that are enumerated in N.J.A.C. 10A:71-3.11(a)-(b).

In mitigation, the panel found that Janowski had participated in programs, had average institutional reports, and attempted to enroll in additional programs but was not admitted. Nevertheless, the panel found multiple factors favoring denial of parole: a prior criminal record that is extensive and repetitive; nature of criminal record increasingly more serious; prior opportunities on probation failed to deter criminal behavior; current opportunity on parole was not completed; prior incarceration failed to deter criminal behavior; institutional infractions that were serious, resulted in loss of commutation time and detention, the most recent infraction being on October 5, 2011, three months before the panel decision; insufficient problem resolution, specifically a lack of insight into criminal behavior and inability to control disruptive behavior and drug addiction; lack of an adequate parole plan; and a risk assessment evaluation with a score of twenty-nine, which is within the moderate risk range for recidivism. See N.J.A.C. 10A:71-3.11(b) (stating the factors).

In agreeing with the panel's decision, the full Board listed each reason for denial of parole given by the panel and agreed with the panel's assessment. Moreover, the Board

considered, addressed and rejected all of Janowski's objections to the panel's decision.

In response to Janowski's objection that the panel did not consider the circumstances of his parole violation, specifically his renunciation, the Board noted that this event, as well as the health condition that precluded his completion of a drug treatment program, had been taken into consideration when his parole was revoked.

The Board also rejected Janowski's claim that the panel overlooked his participation in treatment. The Board noted, correctly, that the panel had identified his participation in programs and his interest in other programs as factors favoring parole. The Board further concluded that the panel properly relied on the recent relapse that led to revocation.

The Board declined to consider favorable information submitted to the Board but not to the panel such as improvements to Janowski's parole plan and his earning of his GED. In that respect, the Board explained that his progress would be considered when his parole was reviewed.

Finally, the Board rejected Janowski's claim that the Board deprived him of due process by withholding as confidential the risk assessment upon which the panel and Board relied. The Board relied upon N.J.A.C. 10A:71-2.2(c), which provides:

Inmates or parolees shall be afforded disclosure of adverse material or information considered at a hearing, provided such material is not classified as confidential by the Board or the Department. If disclosure is withheld, the reason for nondisclosure shall be noted in the Board's files, and such material or information shall be identified as confidential.

The materials withheld in this case fall within that class, identified as confidential. "Information, files, documents, reports, records or other written materials concerning an offender's medical, psychiatric or psychological history, diagnosis, treatment or evaluation" are classified as confidential. N.J.A.C. 10A:71-2.2(a)(1).

Having reviewed the record in light of the arguments presented on this appeal, we conclude that none except the question of confidential records has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

With respect to disclosure of prison files pertinent to parole, this court has previously held that exceptions to disclosure of materials are not inconsistent with a parolee's right to procedural due process where disclosure would implicate security and discipline in the prison, the protection of those who have given information and will continue to come in contact with the prisoner, or therapeutic goals that would be undermined by disclosure of diagnostic materials. Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 122-23 (App. Div. 1986).

We further note that the only document Janowski mentioned before the Board was his risk assessment. The panel noted his score, and the Board explained that a "professional evaluator assigns a score" to various factors based on an interview of the parolee and review of the parolee's "case file." The Board further explained that Janowski's score of twenty-nine represents a moderate risk of recidivism. Risk of recidivism is one factor, but not a determinative factor, where, as here, the standard of parole focuses on the likelihood of compliance with conditions of parole.

The panel's and the Board's determinations are "supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). For the that reason and substantially for the reasons expressed by the panel and the Board, we affirm the denial of parole.

Affirmed.

1 Although the judgments of conviction indicate that the charges of first-degree robbery were amended to second-degree, the statement of reasons set forth in each judgment indicates that the convictions were for first-degree robbery and that the plea agreement, which governed sentencing on both indictments, was for sentencing within the range applicable to a crime of the second degree.