PAUL DESANTIS 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NOT FOR PUBLICATION WITHOUT THE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-02975-12T1

PAUL DESANTIS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

___________________________________

September 2, 2014

Argued February 12, 2014 Decided

Before Judges Grall and Nugent.

On appeal from the New Jersey State Parole Board.

Annmarie Jensen argued the cause for appellant (Agre & Jensen, attorneys; Robert N. Agre, of counsel; Ms. Jensen, on the briefs).

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

PER CURIAM

Paul DeSantis appeals from the January 23, 2013 final decision of the New Jersey State Parole Board denying him parole and establishing a twenty-month future eligibility term (FET). We affirm.

Appellant is serving an aggregate six-year custodial term for four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a), to which he pled guilty in 2011. The charges stem from his possession and distribution of child pornography between January 2008 and April 2010. Authorities arrested appellant on April 20, 2010, and a grand jury later charged him in a five-count indictment with four counts of second-degree and one count of fourth-degree endangering the welfare of a child. As mentioned, appellant pled guilty to the four second-degree counts.

At the time of his arrest, appellant was serving a five-year probationary sentence on a single count of fourth-degree endangering stemming from his possession of child pornography. He had pled guilty to that charge on February 20, 2007. His guilty plea to the four child endangering charges in 2011 violated the terms of his probation.

On December 14, 2011, a judge sentenced appellant in accordance with a plea agreement to a six-year custodial term on each of the four 2011 endangering charges. On the same day, the judge terminated appellant's probation on the fourth-degree endangering conviction and sentenced him to an eighteen-month custodial term. All sentences were to be served concurrently, and appellant received jail credits for four hundred and twenty days he had spent in jail following his arrest.

Appellant became eligible for parole on September 13, 2012. A hearing officer referred the matter to a two-member Adult Board panel. Appellant appeared before the panel on June 22, 2012. He presented as part of his parole application the following: (1) a three-page "Mission Statement" that detailed his goals regarding himself, his family, his professional life, and the community; (2) a two-page "Plan of action upon release" describing what he would do in the immediate, short, medium, and long term post-release; (3) various pre-parole reports, all positive, describing his work as a teacher's aide and his participation in an Alcoholics Anonymous program1; (4) certificates of achievement, participation, or completion for various in-house programs including Cage Your Rage, and Successful Employment and Lawful Living; (5) numerous letters of support from his plea counsel, his employer, his family, his friends, and his Sex Addicts Anonymous 12-step support and rehabilitation group; (6) a three-page report from a licensed psychologist who reported favorable and significant progress2; and (7) the results of the State's own mental health evaluation conducted on February 18, 2012, including his LSI-R Score, which concluded appellant had an "above average ability to support himself in the community" and assessed him as a "fair to good risk for parole" and a "low risk to violently reoffend."

During the parole hearing, appellant admitted his addiction to child pornography and his relapse, and detailed his efforts at rehabilitation. He acknowledged the heinous nature of his crimes and his role as a victimizer, and expressed remorse for the victims.

After its review, the panel denied appellant parole. In its written notice of decision, the panel determined there was a reasonable expectation appellant would violate the conditions of parole if released.

The panel found as mitigating factors that appellant was infraction free, participated in programs specific to his behavior, participated in institutional programs, received average to above average institutional reports, and attempted to enroll and participate in programs to which he had not been admitted due to a wait list. Nevertheless, the panel denied appellant parole because he had a prior criminal record, was presently incarcerated for a multi-crime conviction, had committed new offenses while on probation, and had insufficient problem resolution because he lacked insight into his criminal behavior, was in denial concerning his crime, and minimized his conduct. The panel noted: "[Inmate] indicates that he has been re-habilitated from his porn addiction, although it appears that his responses have been less than truthful. Of concern would be a successful completion of a parole term." The panel suggested behavior modification, institutional programs geared toward criminal behavior, and one to one counseling. The panel imposed a twenty-month FET.

Appellant appealed the panel's decision to the Parole Board. He supplemented the record with documents that were not available at the time of the initial panel hearing: a certificate of completion for the New Jersey Department of Corrections Focus on the Victim Program, a certificate of completion for the Office of Transitional Services Thinking For a Change cognitive behavior program, and an additional character letter.

On January 23, 2013, the Board issued a notice of final agency decision affirming the panel's denial of parole. According to the Board, there was ample evidence in the record for the panel to find a reasonable expectation of parole violation upon release. The Board rejected appellant's contention that the panel failed to consider or give appropriate weight to the mitigating factors, test results, documents, achievements, and actions that favored parole. The Board repeatedly noted the panel's comment that appellant had been "less than truthful" during the initial hearing, and that appellant lacked insight into his criminal behavior, denied his crimes, and minimized his conduct. The Board explained:

The full Board notes that program participation, including individual and group counseling and therapy, is one factor of many considered by the Panel and is not the only indicator of rehabilitation. Although it appears that [appellant] has made some progress and does express some remorse for his victims and his actions, [appellant's] criminal thinking and behavior is deeply rooted, as evidenced by his history of sexual offenses involving children dating back to 2004, and his years of sex-offender counseling, followed by additional and more numerous sexual offenses involving children in 2008 through 2010. He had been given an opportunity on probation and it has failed to deter additional criminal behavior [on] his part. The full Board finds that [appellant's] program participation and achievement of some progress in his criminal thinking and behavior, does not negate the fact that he still lacks full insight into his criminal behavior, is in denial about the full extent of his criminal behavior, and minimizes his conduct. The full Board concurs with this assessment and determination by the Board Panel and finds [appellant's] contentions to be without merit.

The Board affirmed the twenty-month FET. Appellant filed this appeal.

Appellant raises the following issues:

I: THE FACTUAL FINDINGS OF THE PAROLE PANEL AND BOARD WERE NOT SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD RELATING TO PAUL DESANTIS' LIKELIHOOD TO RECIDIVATE; AS SUCH, THE DECISION DENYING HIM PAROLE WAS ARBITRARY AND CAPRICIOUS AND SHOULD BE OVERTURNED.

A. HAD THE PANEL AND BOARD ACCURATELY APPLIED THE FACTORS SET FORTH IN N.J.A.C. 10A:71-3.11 AND APPROPRIATELY CONSIDERED SEVERAL OBVIOUSLY-APPLICABLE "MITIGATING FACTORS," PAUL DESANTIS' RELEASE WOULD HAVE BEEN FORTHCOMING.

B. THE EVIDENCE DID NOT SUPPORT THE FACTUAL FINDING THAT PAUL DESANTIS HARBORED INSUFFICIENT PROBLEM RESOLUTION.

C. THE FACTUAL FINDING THAT PAUL DESANTIS' PROBATIONARY STATUS HAD NOT BEEN FORMALLY TERMINATED OR REVOKED WAS CLEARLY IN ERROR.

II. THE BOARD PANEL MEMBERS DEMONSTRATED A PERSONAL BIAS AGAINST PAUL DESANTIS AND ENGAGED IN A PROCESS THAT SHOULD BE DEEMED VIOLATIVE OF THE CODE OF PROFESSIONAL CONDUCT (NOT ARGUED BELOW).

III. THE PAROLE BOARD'S FAILURE TO COMPLY WITH N.J.A.C. 10A:71-4.2(b) SHOULD RESULT IN A REVERSAL OF THE DECISION AFFIRMING PAUL DESANTIS' DENIAL OF PAROLE (NOT ARGUED BELOW).

IV. THE "FILL-IN-THE-BLANK" NOTICE OF DECISION UTILIZED BY THE BOARD PANEL IS VIOLATIVE OF EXISTING STATUTORY, REGULATORY AND CASE LAW REGARDING THE STANDARDS TO BE APPLIED IN ASSESSING PAUL DESANTIS' ELIGIBILITY FOR PAROLE (NOT ARGUED BELOW).

We begin our analysis with the parole statute. N.J.S.A. 30:4-123.53, entitled "Release of inmate," provides in pertinent part:

a. An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to section 10 of P.L.1979, c. 441 (C.30:4-123.54) or developed or produced at a hearing held pursuant to section 11 of P.L.1979, c. 441 (C.30:4-123.55) 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 conditions of parole imposed pursuant to section 15 of P.L.1979, c. 441 (C.30:4-123.59) if released on parole at that time. In reaching such determination, the board panel or board shall state on the record the reasons therefor.

"[T]he statute creates a presumption of release on the parole eligibility date." Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 42 (App. Div. 2003). Nevertheless, the statute makes clear that the Board may deny parole if the information before it 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 the inmate will violate conditions of parole.

When an inmate appeals a Board's decision to deny parole, our review of the Board's decision is limited to

(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Trantino v. N.J. State Parole Bd., ("Trantino IV"), 154 N.J. 19, 24 (1998).]

In applying that standard, we recognize that the Board's decisions are considered "highly individualized discretionary appraisals." Id. at 25 (internal quotation marks omitted). The question whether there is a reasonable expectation that the inmate will violate conditions of parole if released, though "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). For that reason, a "reviewing court must determine whether this factual finding could reasonably have been reached on sufficient credible evidence in the whole record." Ibid. We will reverse a decision under this standard 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.'" Ibid. (quoting 613 Corp. v. State of N.J., Div. of the State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)). That can occur when there is a "lack of inherently credible supporting evidence, the obvious overlooking or underevaluation of crucial evidence[,] or a clearly unjust result." Ibid. (internal quotation marks omitted).

Having reviewed the Board's decision under that standard, we are not left with "a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." Ibid. (internal quotation marks omitted).

Appellant argues that the Board's decision was not supported by credible evidence. In support of that argument, appellant purports to analyze twenty-three factors that the Board is required to consider when making a parole decision. N.J.A.C. 10A:71-3.11(b). In doing so, however, appellant either overlooks or underemphasizes the Board's assessment of those factors.

For example, appellant asserts with respect to the "[n]ature and pattern of previous convictions," N.J.A.C. 10A:71-3.11(b)(3): "Both . . . convictions stem from the same type of addiction . . . . [Appellant] has taken every opportunity to rehabilitate himself [and] has sought . . . counseling, has found support from others that he previously lacked and has demonstrated his acknowledgment of the nature and severity of his addiction." This assertion does not address the Board's assessment that "[appellant's] criminal thinking and behavior is deeply rooted," and that "his history of sexual offenses involving children dat[es] back to 2004, and [that he had] years of sex-offender counseling, followed by additional and more numerous sexual offenses involving children in 2008 through 2010." Similarly, appellant minimizes the Board's concern with his failure to adjust to previous probation, N.J.A.C. 10A:71-3.11(b)(4), and the facts and circumstances of his offense, N.J.A.C. 10A:71-3.11(b)(5).

Granted, many of the factors enumerated in N.J.A.C. 10A:71-3.11(b) weighed in appellant's favor. Most notable were his participation in institutional programs, N.J.A.C. 10A:71-3.11(b)(8); considerable documentation reflecting personal goals, personal strengths, or motivation for law-abiding behavior, N.J.A.C. 10A:71-3.11(b)(12); and favorable results from an objective risk assessment which put him at "low risk to commit a violent offense" and "fair to good risk for parole release," N.J.A.C. 10A:71-3.11(b)(23). But our role is neither to independently weigh the factors considered by the Board nor to substitute our judgment for its judgment. Rather, we must evaluate whether the Board's factual determinations could reasonably have been reached on sufficient credible evidence in the whole record. We conclude the Board's factual determinations here could reasonably have been reached on the record before it.

Appellant also argues that there was insufficient evidence to substantiate the panel's and Board's findings that he had insufficient problem resolution. We disagree. The dialogue between appellant and the panel members demonstrates what could have been construed as appellant minimizing the difference between adult pornography and child pornography. Appellant acknowledged he was addicted to pornography, but when a panel member asked how that evolved into child pornography and commented that child pornography was "whol[ly] different," appellant responded, "well, it is and it sort of isn't." Appellant analogized the situation to a drug addict who progresses from marijuana to heroin. He also commented that, with respect to child pornography, "it's probably there's more of the, you know, the taboo aspect of it." Appellant continued: "I was never really interested in the actual images. It was more the possession of having them."

We cannot adequately assess the import of those comments based on appellant's demeanor, tone of voice, and affect when he made them. But the panel members were able to do. They could have concluded from such statements that appellant lacked insight into the serious nature of the crimes he committed, particularly to the extent that they involved young children; a fact appellant did not appear to appreciate as being significantly different in nature from pornography involving consenting adults.

Appellant's remaining arguments were either not raised before the Board or are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Though appellant was not an alcoholic, he attended Alcoholics Anonymous meetings because it was based on the same twelve-step program as Sex Addicts Anonymous, which program appellant attended while out on bail.

2 The report was authored by Dr. Michael L. Noyer. Appellant first treated with Dr. Noyer following appellant's first arrest in 2004. Following his second arrest, appellant made bail on June 13, 2011, and resumed twice weekly treatment with Dr. Noyer.