KURT WERNER 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NOT FOR PUBLICATION WITHOUT THE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

KURT WERNER,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

__________________________________

May 6, 2015

Submitted April 28, 2015 Decided

Before Judges Nugent and Manahan.

On appeal from the New Jersey State Parole Board.

Kurt Werner, appellant pro se.

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

PER CURIAM

Kurt Werner appeals the New Jersey State Parole Board's decision denying him parole and establishing an eighteen-month future eligibility term (FET). We affirm.

During a 2006 police investigation of child sexual abuse allegations, Werner admitted to police that he sexually abused a four-year-old girl on three separate occasions. In 2007, he pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). The court imposed a sentence as if the crime were a second-degree offense and ordered Werner to serve a five-year prison term subject the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Under NERA, Werner was required to serve eighty-five percent of his prison term before becoming eligible for parole and was also required to serve a five-year term of parole supervision commencing upon completion of his sentence.

Werner was released from custody on January 24, 2011. During the first year of his five-year term of parole supervision, he violated the terms of his parole by using cocaine. He was arrested on a parole warrant on May 9, 2012. Following a parole revocation hearing, a hearing officer recommended that Werner's parole be revoked.1 An Adult Panel adopted the hearing officer's recommendation and established a twelve-month FET.

Werner again became eligible for parole on May 8, 2013. In April 2013, however, Werner had a parole hearing and a Board Panel thereafter denied him parole and fixed an eighteen-month FET. Werner appealed to the full Parole Board. In a decision dated October 30, 2013, the Parole Board upheld the Board Panel's decision. In its final agency decision, the Parole Board explained, among other things

Having considered your claims, the Board finds that the Board Panel noted as reasons for parole denial: prior criminal record is extensive and repetitive; prior criminal record noted; nature of criminal record increasingly more serious; prior opportunities on parole have failed to deter criminal behavior; prior opportunity on parole has been violated in the past; and current opportunity on parole has been violated. Furthermore, based on your responses to questions posed by the Board Panel at the time of the hearing, the Board Panel determined that you exhibit insufficient problem resolution, specifically, that you lack insight into your criminal behavior and that your substance abuse problem has not been sufficiently addressed. The Board Panel noted "Inmate needs to address his admitted drug dependency and continue NA and AA.

The Parole Board also addressed each of Werner's contentions as to why he thought the Board Panel had erred in denying him parole. The Parole Board concluded

Based upon consideration of the facts cited above, the Board finds that the Board Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supports its decision pursuant to N.J.A.C. 10A:71-3.18(f). Additionally, in assessing your case, the Board concurs with the determination of the Board Panel that a preponderance of the evidence indicates that there is a reasonable expectation that you would violate the conditions of parole if released on parole at this time. Accordingly, the Board affirms the Board Panel's April 8, 2013 decision to deny parole and establish an eighteen (18) month future parole eligibility term. You will be scheduled for a subsequent parole release hearing when it is appropriate.

Werner appealed the Parole Board's final agency decision. On appeal, he raises the following arguments

POINT I

APPELLANT WAS DENIED PROCEDURAL DUE PROCESS THROUGHOUT HIS PAROLE PROCEEDINGS.

POINT II

THE REVOCATION OF APPELLANT'S PAROLE WAS ARBITRARY AND CAPRICIOUS AND SUBSEQUENT DECISIONS TO DENY PAROLE REINSTATEMENT ARE ALSO ARBITRARY AND CAPRICIOUS.

POINT III

CURRENT NEW JERSEY STATE PAROLE BOARD POLICY AMOUNTS TO REVERSE DISCRIMINATION.

POINT IV

UNWRITTEN NEW JERSEY STATE PAROLE BOARD POLICY VIOLATES THE AMERICANS WITH DISABILITIES ACT

POINT V

APPELLANT HAS TAKEN ADVANTAGE OF EVERY CORRECTIVE AVENUE AVAILABLE TO HIM WHILE INCARCERATED.

Having considered Werner's arguments in light of the record and applicable law, we conclude that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The record discloses no basis for concluding that the Board's final decision was "arbitrary, capricious or unreasonable." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 191-92 (2001). Rather, our review confirms that the Board's decision is based "on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998)) (internal quotation marks omitted). For those reasons, we defer to the factual findings and expertise of the Board.

Affirmed.

1 The hearing officer informed Werner of his right to a probable cause hearing and a final parole revocation hearing. Werner elected to convert the probable cause hearing into a final violation hearing.