DION BATTLE v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5254-16T3

DION BATTLE,

          Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

     Respondent.
_____________________________________

                    Submitted October 3, 2018 - Decided October 11, 2018

                    Before Judges Ostrer and Mayer.

                    On appeal from the New Jersey State Parole Board.

                    Dion Battle, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Gregory R. Bueno,
                    Deputy Attorney General, on the brief).

PER CURIAM

          Appellant Dion Battle appeals from a May 31, 2017 final agency decision

of the New Jersey State Parole Board (Board). Battle alleges the Board failed
to consider all relevant evidence when it denied his parole and imposed a

sixteen-month future eligibility term (FET). We disagree and affirm.

      On May 29, 2009, Battle and another individual robbed a deli located in

Trenton, New Jersey. Battle was indicted on charges of robbery, unlawful

possession of a weapon, and possession of a weapon for unlawful purpose. He

eventually pleaded guilty to the first degree robbery charge,  N.J.S.A. 2C:15-1,

and was sentenced to a six-year prison term with an eighty-five percent parole

ineligibility subject to the No Early Release Act,  N.J.S.A. 2C:43-7.2.          In

addition, the sentencing court imposed a five-year term of parole supervision

upon Battle's release from prison.

      Battle was denied parole for the first time on August 8, 2015, resulting in

a sixteen-month FET. He became eligible for parole a second time on January

29, 2017.

      In September 2016, Battle's case was referred to a two-member Board

panel for a hearing. On December 6, 2016, the Board panel again denied Battle's

parole and imposed a sixteen-month FET. The Board panel denied parole for

the following reasons: extensive record of prior offenses; record of repetitive

offenses; failure to deter criminal behavior despite juvenile community

supervision; technical violations during prior community supervision; prior


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incarcerations failed to deter criminal behavior; multiple institutional

infractions; additional institutional infractions subsequent to the first parole

denial; and insufficient problem resolution. The panel concluded that Battle

"continues to act in a way consistent with his criminal thinking in a way that

puts all around him in danger." Additionally, the panel found Battle lacked an

adequate parole plan and noted Battle's risk assessment score indicated a

medium risk of recidivism.

      The Board panel also considered various mitigating factors in its parole

determination.     The panel noted Battle participated in behavioral and

institutional programs, which reported a favorable institutional adjustment.

Battle also demonstrated a positive adjustment to TC program/Assessment

Center/RCRP and achieved minimum custody status. Despite these mitigating

factors, the Board panel rejected battle's request for parole.

      Battle filed an administrative appeal, and the matter was reviewed by the

full Board on May 31, 2017. After considering the administrative record, the

full Board affirmed the panel's decision, denying parole and establishing a

sixteen-month FET.

      On appeal, Battle argues:

            THE [BOARD] FINDINGS AND CONCLUSIONS TO
            DENY APPELLANT RELEASE ON PAROLE AND

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            IMPOSE AN EXCESSIVE (FET) UPON HIM WAS
            CONTRARY TO THE MATERIAL FACTS.

      Under our standard of review, we accord considerable deference to the

Board and its expertise in parole matters. Trantino v. N.J. State Parole Bd.,  154 N.J. 19, 25 (1998) (Trantino IV) (quoting Beckworth v. N.J. State Parole Bd.,

 62 N.J. 348, 359 (1973)). "The decision of a parole board involves 'discretionary

assessment[s] of a multiplicity of imponderables . . . .'" Trantino v. N.J. State

Parole Bd.,  166 N.J. 113, 201 (2001) (Trantino V) (alteration in original)

(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex,  442 U.S. 1, 10

(1979)). The Board's decision regarding parole will not be disturbed unless

"arbitrary, capricious, or unreasonable, or [] not supported by substantial

credible evidence in the record as a whole." In re Stallworth,  208 N.J. 182, 194

(2011) (alteration in original) (citation omitted). With respect to the Board's

factual findings, we do not disturb them if they "could reasonably have been

reached on sufficient credible evidence in the whole record." Hare v. N.J. State

Parole Bd.,  368 N.J. Super. 175, 179 (App. Div. 2004) (citing Trantino V,  166 N.J. at 201).

      In reviewing Battle's application for parole, the Board considered the

following: his extensive and repetitive prior criminal record; that prior

opportunities on probation and parole failed to deter his criminal behavior; that

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prior opportunities on probation and parole were revoked for technical

violations, including use of CDS; his institutional infractions; that prior

incarcerations did not deter his criminal behavior; and the lack of an adequate

parole plan for reintegration into the community. Additionally, the Board found

Battle exhibited insufficient problem resolution, particularly substance abuse

issues, and that his continued behavior "puts all around him in danger." The

Board also took into account Battle's risk assessment evaluation. The Board

noted the same mitigating factors as the Board panel. Based on the foregoing,

the Board concluded, "a preponderance of the evidence indicates there is a

reasonable expectation that [Battle] will violate conditions of parole if released

on parole."

      Applying our well-established standard of review and considering the

record, we affirm the Board's decision. The Board considered the relevant

factors in accordance with N.J.A.C. 10A:71-3.11 in determining that Battle is

substantially likely to commit another crime if released at this time.1 We shall

not second-guess the Board's conclusion that the negative factors outweighed

the positive, justifying denial of parole. We also are satisfied that the sixteen -



1
  Although we cannot disclose the contents of the confidential parole mental
health evaluation, we note it supports the Board's decision.
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month FET was not arbitrary, capricious, nor unreasonable. See McGowan v.

N.J. State Parole Bd.,  347 N.J. Super. 544, 565 (App. Div. 2002). The Board's

determination is supported by sufficient credible evidence and is entitled to

deference.

     Affirmed.




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