HECTOR FERNANDEZ 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NOT FOR PUBLICATION WITHOUT THE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-3369-17T1

HECTOR FERNANDEZ,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
____________________________

                    Submitted December 18, 2018 – Decided January 16, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from the New Jersey State Parole Board.

                    Hector Fernandez, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Christopher C. Josephson, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Appellant Hector Fernandez appeals from a February 28, 2018 final

agency decision of the Parole Board (the Board) denying him parole and

imposing a twenty-four month future eligibility term (FET). He is serving a

term of life imprisonment for murder, unlawful possession of a weapon, robbery,

armed burglary, and theft. This was his sixth application for parole. We affirm.

                                       I.

      On September 8, 1980, appellant, his brother, and another male robbed a

liquor store and killed the victim by shooting him three times in the head.

Between September 3 and 10, 1980, appellant committed three other robberies

and a burglary. A stolen pistol was identified as the murder weapon and was

traced to appellant. He was arrested and charged with murder, two counts of

unlawful possession of a weapon, two counts of aggravated assault, burglary,

and theft. In April 1981, he pled guilty to murder, unlawful possession of a

weapon, four counts of robbery, armed burglary, and theft. He was sentenced

to an aggregate term of life imprisonment with a mandatory-minimum sentence

of twenty years.

      In October 2017, a two-member Board panel denied parole and

established a twenty-four month FET. Appellant administratively appealed that




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decision and, on February 28, 2018, the full Board affirmed both the denial of

parole and the twenty-four month FET.

      In his appeal to us, appellant contends:

            POINT I

            THE NEW JERSEY STATE PAROLE BOARD'S
            DENIAL OF PAROLE WAS ARBITRARY AND
            CAPRICIOUS, WHERE THE REASONS STATED
            FOR DENIAL WERE INADEQUATE AND THE
            DENIAL WAS NOT SUPPORTED BY CREDIBLE
            EVIDENCE CONTAINED IN THE RECORD.

            POINT II

            THE BOARD PANEL FAILED TO DOCUMENT
            THAT A PREPONDERANCE OF EVIDENCE
            INDICATES THERE IS A SUBSTANTIAL
            LIKELIHOOD THAT THE INMATE WILL
            VIOLATE CONDITIONS OF PAROLE, AS
            ESTABLISHED BY N.J.A.C. 10A:71-4.1(2).

            POINT III

            THE BOARD PANEL DENIED APPELLANT HIS
            RIGHT TO PROCEDURAL DUE PROCESS DUE TO
            THE BOARD PANEL'S VIOLATION OF WRITTEN
            BOARD POLICY (Not Raised Below).

            POINT IV

            THE PAROLE BOARD UTILIZED SUBJECTIVE
            PSYCHOLOGICAL TERMS SUCH AS LACK OF
            INSIGHT, REMORSE, AND MINIMIZES CONDUCT
            AS THE BASIS TO DENY PAROLE RENDERING


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            THE DECISION UNCONSTITUTIOINAL                     ON
            VAGUENESS GROUNDS.

            POINT V

            THE REPEATED USE OF THE SAME CRITERION
            TO   DENY      PAROLE       VIOLATES THE
            CONSTITUTIONAL PRECEPTS OF DOUBLE
            JEOPARDY (Not Raised Below).

      In his letter reply brief, appellant further contends:

            POINT I

            THE BOARD PANEL FAILED TO ESTABLISH A
            NEXUS BETWEEN THE REASONS FOR DENIAL
            AND THE CONCLUSION THAT THERE EXISTED
            A    SUBSTANTIAL   LIKELIHOOD   THAT
            APPELLANT WOULD COMMIT A NEW CRIME IF
            RELEASED.

            POINT II

            THE   BOARD   PANEL    DENIED  HECTOR
            FERNANDEZ HIS RIGHT TO PROCEDURAL DUE
            PROCESS BY FAILING TO PROVIDE A BOARD
            REPRESENTATIVE   TO   AID   HERNANDEZ
            THROUGHOUT HIS HEARINGS.

                                        II.

      We accord considerable deference to the Board and its expertise in parole

matters. Our standard of review is whether the Board's decision was arbitrary

and capricious. Acoli v. N.J. State Parole Bd.,  224 N.J. 213, 222-23 (2016).

Parole Board decisions are "highly 'individualized discretionary appraisals.'"

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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)). We will not disturb the

Board's fact-findings 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). "A reviewing court 'may not substitute its

own judgment for the agency's, even though the court might have reached a

different result.'"   In re Stallworth,  208 N.J. 182, 194 (2011) (quoting In re

Carter,  191 N.J. 474, 483 (2007)). "This is particularly true when the issue under

review is directed to the agency's special 'expertise and superior knowledge of

a particular field.'" Id. at 195 (quoting In re Herrmann,  192 N.J. 19, 28 (2007)).

      A Board decision to grant or deny parole for crimes committed before

August 1997 turns on whether there is a "substantial likelihood" the inmate will

commit another crime if released.  N.J.S.A. 30:4-123.53(a) (1979);  N.J.S.A.

30:4-123.56(c) (1979); Williams v. N.J. State Parole Bd.,  336 N.J. Super. 1, 7

(App. Div. 2000); N.J.A.C. 10A:71-3.10(a).        The Board must consider the

enumerated factors in N.J.A.C. 10A:71-3.11(b)(1) to (23) in making its decision.

The Board, however, is not required to consider each and every factor; rather, it

should consider those applicable to each case. McGowan v. N.J. State Parole

Bd.,  347 N.J. Super. 544, 561 (App. Div. 2002).


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      Having reviewed the record in light of these well-established standards,

we affirm the Board's denial of parole.       Appellant's parole eligibility was

evaluated by the full Board in a written decision. The Board adopted the

determinations made by the two-member panel, which identified a number of

reasons for its decision, including: the facts and circumstances of the offenses;

appellant's prior criminal record; that he was serving time for multiple criminal

convictions; a prior opportunity on parole was revoked because of the

commission of new offenses; and prior opportunities on probation and parole

failed to deter criminal behavior and have been violated, terminated and

revoked. Saliently, the Board noted that appellant has "insufficient problem

resolution," that he "lack[s] insight" concerning his criminal behavior, and

continues to "minimize" his criminal conduct. The Board panel noted that

appellant "still does not know why he committed the criminal offen se of

[m]urder and doesn't understand the reason for his criminal behavior." Further,

during his incarceration, he committed forty-nine institutional disciplinary

infractions, fifteen being described as "serious."

      All of these findings are relevant factors under N.J.A.C. 10A:71-3.11(b).

There is sufficient credible evidence in the record supporting these findings, and

we discern nothing arbitrary or capricious in the Board's decision to deny parole.


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We are unpersuaded by appellant's argument that the Board used subjective

psychological terms, rendering its decision unconstitutional. A review of the

full Board's determination makes clear that the Board appropriately consider ed

the confidential psychological report.      Indeed, the Board duly found that

appellant produced "no evidence to support this claim and none exists in the

record." We agree.

      There is also sufficient evidence to support the Board's conclusion that " a

preponderance of the evidence indicates that there is a substantial likelihood that

[appellant] would commit a crime if released on parole at this time." Lastly, we

are satisfied that the Board appropriately considered mitigating factors.

      Affirmed.




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