JULIAN COSMA 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NOT FOR PUBLICATION WITHOUT THE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

JULIAN COSMA,

Appellant,

v.

NEW JERSEY STATE PAROLE

BOARD,

Respondent.

________________________________________

March 25, 2014

Submitted September 11, 2013 Decided

Before Judges Waugh and Accurso.

On appeal from the New Jersey State

Parole Board.

Julian Cosma, 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

Appellant Julian Cosma, an inmate currently incarcerated, appeals from a final decision of the Parole Board denying parole and imposing a twenty-nine month future eligibility term (FET). We affirm.

Over the course of seventeen days, appellant accosted three different women, each in the middle of the night. He entered the first woman's car, held her at knifepoint and suggested various sexual activities. She escaped by wresting control of the knife and jumping out the moving car.

He bumped into the rear of another woman's car ten days later, identifying himself as a law enforcement officer. He followed the woman home on the pretense of needing to see her license and forced his way into her apartment. He threw the woman against the wall and then to the floor and got on top of her. Appellant placed his hand over her mouth to keep her from screaming, lifted her shirt, kissed her breast and unbuckled her belt. She escaped and ran to call the police. When they arrived, the victim had a cut near her right eye, her pants were ripped, her shirt was open and her belt was hanging from her pants.

A week later, appellant again ran into another woman's car. When the woman refused his offer to accompany him to an ATM to withdraw money to pay for the damage, appellant sprayed her with mace. He then forced her to the ground, covered her mouth with his hand and told her to "[s]hut up . . . . It's your choice if you wanna live or die. I will kill you. I'm going to fuck you . . . . I will stab you." A neighbor heard the woman's screams and intervened. The victim received emergency treatment for injuries to her eyes and back.

Police executing a search warrant at appellant's home discovered a registered handgun, ammunition, and a bag of cocaine. Appellant admitted the cocaine belonged to him and that he had been using cocaine every other day during the period of his crimes. He also admitted being under the influence of cocaine and alcohol when he committed each attack.

Appellant was indicted on two counts of burglary, three counts of terroristic threats, carjacking, two counts of possession of weapons for unlawful purposes, impersonating a law enforcement officer, kidnapping, aggravated assault, criminal attempt, aggravated sexual assault, criminal sexual contact, and possession of controlled dangerous substances. He pled guilty to two counts of terroristic threats, N.J.S.A. 2C:12-3a, and one count of aggravated assault, N.J.S.A. 2C:12-1b(7), and was sentenced to four years on each count, to run consecutively, for a maximum term of twelve years. The remaining charges were dismissed.

Appellant first became eligible for parole on March 21, 2012. On December 2, 2011, a two-member Board Panel denied parole and established a twenty-nine month FET, basing its decision on appellant's insufficient problem resolution, including a lack of insight into his criminal behavior and minimization of conduct, as well as his failure to adequately address his substance abuse problem as demonstrated by the Panel interview and documentation in the case file. Regarding mitigating factors, the Board recognized that appellant has no prior criminal record, has remained infraction-free during his incarceration, participated in institutional programs and attempted to enroll in others, and achieved and maintained minimum custody status.

Appellant appealed the Panel's decision to the full Board, which affirmed the denial of parole and the imposition of a twenty-four month FET. In doing so, the Board reasoned in part:

With regard to your specific contentions, the full Board finds that pursuant to N.J.A.C. 10A:71-3.11(b)(17), during the time of the hearing, the Panel may consider statements given by an inmate reflecting on a finding of a reasonable expectation that he will violate the conditions of parole. Based on your responses to questions posed by the Panel at the time of the hearing, the Panel appropriately determined that you exhibit insufficient problem resolution, specifically, that you lack insight into your criminal behavior, minimize your conduct and have not sufficiently addressed your substance abuse problem. With regard to your specific contention that you do not minimize your conduct, the Panel finds that you have been involved in treatment, but have gained little insight from these programs. Your program participation and institutional adjustment are a matter of record, were noted on the Case Summary at the time of your Initial Hearing and were considered by the Panel. . . . However, program participation is one factor of many considered by the Panel, and the full Board concurs with the Panel's determination that, based on the aggregate of all relevant factors, there is a reasonable expectation that you will violate the conditions of parole if released on parole at this time. Therefore, the full board finds your contention to be without merit.

On appeal, appellant contends that he was denied due process and that the Board's decision is not supported by the record. We disagree.

The Parole Board's decisions are 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)), entitled to a presumption of validity. See In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). We may not upset the determination of the Parole Board absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). In reviewing the Board's determination of whether the standard for release has been met, we must give "due regard" to the Board's experience and expertise in this area on its ability to judge credibility. Newark v. Natural Res. Council in Dep't Envtl. Prot., 82 N.J. 530, 539-40, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980); State v. Locurto, 157 N.J. 463, 470-71 (1999). The burden is on the inmate to show that the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

Applying those standards here, we are satisfied that the Board's denial of parole was based on a proper analysis of the factors it deemed relevant and was supported by sufficient credible evidence. Because appellant's crimes were committed after 1997, the panel and the Board had the authority to deny parole upon a finding that a preponderance of the evidence established "a reasonable expectation that" appellant 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). Here, the factors on which the Board relied, appellant's lack of insight into his multiple crimes and minimization of his criminal conduct, were well illustrated by his own statements at the hearing before the Panel, who found appellant had "greatly minimize[ed] and in many ways defend[ed] his behavior (it was the drugs the depression) . . . The focus is on how he and his family suffered not the victims." Absent such insight, appellant lacks an appreciation for the consequences of his actions. As such, the Board was well within its discretion in concluding that appellant simply had not overcome the reasonable expectation that he would violate conditions of his parole if released. N.J.S.A. 30:4-123.53a.

These same considerations support imposition of the twenty-nine month FET. Pursuant to N.J.A.C. 10A:71-3.21(a)(3), the standard FET for an inmate serving a sentence for threatening violence and aggravated assault is twenty months. Given the number of different victims appellant threatened with violence and assaulted over the course of seventeen days, as well as the personal characteristics of appellant, who has yet to develop meaningful insight into his criminal behavior, empathy for his victims, and attain sufficient progress in addressing his substance abuse, the Board's increased adjustment of the standard FET by nine months is well supported in the record. N.J.A.C. 10A:71-3.21(c).

We also determine the Board properly reviewed and relied on confidential information as a factor in establishing the twenty-nine month FET. N.J.A.C. 10A:71-2.2(c); see Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 126 (App. Div. 1986) (explaining that exceptions to disclosure of materials are not inconsistent with parolee's due process rights where disclosure would implicate security and discipline in the prison, the protection of others, or therapeutic goals that would be undermined by the disclosure of diagnostic materials).

Finally, we reject appellant's argument that his rights were violated by his late receipt of the prosecutor's letter of objection. The redacted letter addressed the prosecutor's concern over the nature of appellant's crimes, and that he is serving a sentence for three incidents of violence against women. The letter addressed no new information and appellant nowhere explains why additional time was necessary to adequately address its contents.

Affirmed.