NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2813-15T2
EDWIN RIVERA a/k/a1 ERIC VARGAS, ISMAEL IRIZZARY and HECTOR RIVERA,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent. _______________________________
Submitted May 24, 2017 – Decided July 13, 2017
Before Judges Gooden Brown and Farrington.
On appeal from the New Jersey State Parole Board.
Edwin Rivera, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
PER CURIAM
1 Referenced in the record also as Eric Vargas, Ismael Irizzary and Hector Rivera. Appellant Edwin Rivera appeals from the January 27, 2016
final agency decision of the New Jersey State Parole Board (Board)
denying him parole and imposing a 120-month future eligibility
term (FET). We affirm.
On September 15, 1983, a jury convicted appellant of murder
and possession of a weapon for an unlawful purpose in the stabbing
death of a rival. On November 18, 1983, appellant was sentenced
to life imprisonment with a thirty-year period of parole
ineligibility.
Appellant was also convicted and sentenced on May 13, 1983,
to an aggregate four-year term with fifteen months of parole
ineligibility for aggravated assault and receiving stolen
property; on December 1, 1983, to an aggregate four-year term for
possession of a prohibited weapon and receiving stolen property;
on May 16, 1986, to eighteen months for possession of a controlled
dangerous substance with intent to distribute; and on January 29,
1987, to an aggregate term of fifteen years with five years of
parole ineligibility for two counts of armed robbery, two counts
of aggravated assault and possession of a weapon for an unlawful
purpose. These sentences were to be served concurrently with each
other and with the life sentence.
Appellant became eligible for parole on February 28, 2015.
However, a two-member panel of the Board denied him parole on
2 A-2813-15T2 February 9, 2015, and referred his case to a three-member panel
(panel) to establish a FET outside of the administrative
guidelines. The panel determined a 120-month FET was appropriate.
In a comprehensive decision, the panel noted the following
aggravating factors: (1) appellant has an extensive and repetitive
prior criminal record; (2) the nature of appellant's criminal
record was increasingly more serious and he was presently
incarcerated for a multi-crime conviction; (3) previous
incarcerations and prior opportunities on parole failed to deter
his criminal conduct and resulted in two parole revocations with
the commission of new criminal offenses; (4) his disciplinary
record during his current incarceration consisted of twenty-two
disciplinary infractions, some of which were drug related and
several of which were asterisk2 offenses resulting in loss of
commutation credits, placements in administrative segregation and
detention, permanent loss of contact visits and an extension of
parole eligibility totaling fifteen months; (5) insufficient
problem resolution, specifically, appellant's lack of insight into
his criminal behavior, minimization of his commitment offenses and
maladaptive behavior while incarcerated by deflecting some
responsibility onto other persons and life experiences, and his
2 Asterisk offenses "are considered the most serious and result in the most severe sanctions[.]" N.J.A.C. 10A:4-4.1(a).
3 A-2813-15T2 failure to sufficiently address his substance abuse problem which
purportedly fueled his criminal behavior; and (6) his risk
assessment evaluation score of eighteen, indicating a moderate
risk of recidivism.
As mitigation, the panel considered appellant's participation
in institutional programs, including programs specific to
behavior; attempts made to enroll in programs despite being denied
admission; average to above average institutional reports; a
favorable institutional adjustment based on appellant's last
disciplinary infraction occurring in 1999; and the achievement and
maintenance of minimum custody status. In addition, the panel
considered information classified as confidential pursuant to
N.J.A.C. 10A:71-2.2(c).3
After considering the applicable factors in N.J.A.C. 10A:71-
3.11(b),4 the panel determined that appellant remained a
3 N.J.A.C. 10A:71-2.2(c) provides that "inmates or parolees shall be afforded disclosure of adverse material or information considered at a hearing, provided such material is not classified as confidential by the Board[.]" 4 N.J.A.C. 10A:71-3.11(b) enumerates factors to be considered in making parole decisions. In addition to the enumerated factors, the Board Panel "may consider any other factors deemed relevant[,]" N.J.A.C. 10A:71-3.11(b), and parole decisions "shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate." N.J.A.C. 10A:71-3.11(a).
4 A-2813-15T2 substantial threat to public safety, essentially for the reasons
enumerated above, warranting the setting of a FET which differed
from the presumptive term. The panel further found that, pursuant
to N.J.A.C. 10A:71-3.21(d),5 a 120-month FET was appropriate given
appellant’s lack of rehabilitative progress in reducing the
likelihood he would engage in future criminal activity if released.
The panel acknowledged that the 120-month FET would be reduced by
any commutation, work, or minimum custody credits earned by
appellant while incarcerated. Based upon appellant's accumulation
of credits as of May 31, 2015, his projected parole eligibility
date was April 22, 2022.
Appellant appealed the panel decision to the Board. On
January 27, 2016, the Board upheld the recommendation to deny
parole and to impose a 120-month FET. This appeal ensued.
Appellant presents the following arguments for our consideration:
POINT ONE
THE PAROLE BOARD FAILED TO DOCUMENT THAT A PREPONDERANCE OF THE EVIDENCE INDICATES A SUBSTANTITAL LIKELIHOOD THAT APPELLANT WILL COMMIT A CRIME IF RELEASED ON PAROLE.
5 N.J.A.C. 10A:71-3.21(d) authorizes a three-member panel to "establish a future parole eligibility date which differs from [the presumptive terms] if the future parole eligibility date which would be established pursuant to such [terms] is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior."
5 A-2813-15T2 POINT TWO
THE PAROLE BOARD FAILED TO PROVIDE ADEQUATE REASONS FOR AN FET OUTSIDE THE GUIDELINES.
We have considered these contentions in light of the record
and applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(D). We affirm substantially for the reasons
expressed in the Parole Board's comprehensive written decision.
We add only the following brief comments.
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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 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2813-15T2
EDWIN RIVERA a/k/a1 ERIC VARGAS, ISMAEL IRIZZARY and HECTOR RIVERA,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent. _______________________________
Submitted May 24, 2017 – Decided July 13, 2017
Before Judges Gooden Brown and Farrington.
On appeal from the New Jersey State Parole Board.
Edwin Rivera, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
PER CURIAM
1 Referenced in the record also as Eric Vargas, Ismael Irizzary and Hector Rivera. Appellant Edwin Rivera appeals from the January 27, 2016
final agency decision of the New Jersey State Parole Board (Board)
denying him parole and imposing a 120-month future eligibility
term (FET). We affirm.
On September 15, 1983, a jury convicted appellant of murder
and possession of a weapon for an unlawful purpose in the stabbing
death of a rival. On November 18, 1983, appellant was sentenced
to life imprisonment with a thirty-year period of parole
ineligibility.
Appellant was also convicted and sentenced on May 13, 1983,
to an aggregate four-year term with fifteen months of parole
ineligibility for aggravated assault and receiving stolen
property; on December 1, 1983, to an aggregate four-year term for
possession of a prohibited weapon and receiving stolen property;
on May 16, 1986, to eighteen months for possession of a controlled
dangerous substance with intent to distribute; and on January 29,
1987, to an aggregate term of fifteen years with five years of
parole ineligibility for two counts of armed robbery, two counts
of aggravated assault and possession of a weapon for an unlawful
purpose. These sentences were to be served concurrently with each
other and with the life sentence.
Appellant became eligible for parole on February 28, 2015.
However, a two-member panel of the Board denied him parole on
2 A-2813-15T2 February 9, 2015, and referred his case to a three-member panel
(panel) to establish a FET outside of the administrative
guidelines. The panel determined a 120-month FET was appropriate.
In a comprehensive decision, the panel noted the following
aggravating factors: (1) appellant has an extensive and repetitive
prior criminal record; (2) the nature of appellant's criminal
record was increasingly more serious and he was presently
incarcerated for a multi-crime conviction; (3) previous
incarcerations and prior opportunities on parole failed to deter
his criminal conduct and resulted in two parole revocations with
the commission of new criminal offenses; (4) his disciplinary
record during his current incarceration consisted of twenty-two
disciplinary infractions, some of which were drug related and
several of which were asterisk2 offenses resulting in loss of
commutation credits, placements in administrative segregation and
detention, permanent loss of contact visits and an extension of
parole eligibility totaling fifteen months; (5) insufficient
problem resolution, specifically, appellant's lack of insight into
his criminal behavior, minimization of his commitment offenses and
maladaptive behavior while incarcerated by deflecting some
responsibility onto other persons and life experiences, and his
2 Asterisk offenses "are considered the most serious and result in the most severe sanctions[.]" N.J.A.C. 10A:4-4.1(a).
3 A-2813-15T2 failure to sufficiently address his substance abuse problem which
purportedly fueled his criminal behavior; and (6) his risk
assessment evaluation score of eighteen, indicating a moderate
risk of recidivism.
As mitigation, the panel considered appellant's participation
in institutional programs, including programs specific to
behavior; attempts made to enroll in programs despite being denied
admission; average to above average institutional reports; a
favorable institutional adjustment based on appellant's last
disciplinary infraction occurring in 1999; and the achievement and
maintenance of minimum custody status. In addition, the panel
considered information classified as confidential pursuant to
N.J.A.C. 10A:71-2.2(c).3
After considering the applicable factors in N.J.A.C. 10A:71-
3.11(b),4 the panel determined that appellant remained a
3 N.J.A.C. 10A:71-2.2(c) provides that "inmates or parolees shall be afforded disclosure of adverse material or information considered at a hearing, provided such material is not classified as confidential by the Board[.]" 4 N.J.A.C. 10A:71-3.11(b) enumerates factors to be considered in making parole decisions. In addition to the enumerated factors, the Board Panel "may consider any other factors deemed relevant[,]" N.J.A.C. 10A:71-3.11(b), and parole decisions "shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate." N.J.A.C. 10A:71-3.11(a).
4 A-2813-15T2 substantial threat to public safety, essentially for the reasons
enumerated above, warranting the setting of a FET which differed
from the presumptive term. The panel further found that, pursuant
to N.J.A.C. 10A:71-3.21(d),5 a 120-month FET was appropriate given
appellant’s lack of rehabilitative progress in reducing the
likelihood he would engage in future criminal activity if released.
The panel acknowledged that the 120-month FET would be reduced by
any commutation, work, or minimum custody credits earned by
appellant while incarcerated. Based upon appellant's accumulation
of credits as of May 31, 2015, his projected parole eligibility
date was April 22, 2022.
Appellant appealed the panel decision to the Board. On
January 27, 2016, the Board upheld the recommendation to deny
parole and to impose a 120-month FET. This appeal ensued.
Appellant presents the following arguments for our consideration:
POINT ONE
THE PAROLE BOARD FAILED TO DOCUMENT THAT A PREPONDERANCE OF THE EVIDENCE INDICATES A SUBSTANTITAL LIKELIHOOD THAT APPELLANT WILL COMMIT A CRIME IF RELEASED ON PAROLE.
5 N.J.A.C. 10A:71-3.21(d) authorizes a three-member panel to "establish a future parole eligibility date which differs from [the presumptive terms] if the future parole eligibility date which would be established pursuant to such [terms] is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior."
5 A-2813-15T2 POINT TWO
THE PAROLE BOARD FAILED TO PROVIDE ADEQUATE REASONS FOR AN FET OUTSIDE THE GUIDELINES.
We have considered these contentions in light of the record
and applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(D). We affirm substantially for the reasons
expressed in the Parole Board's comprehensive written decision.
We add only the following brief comments.
We must accord considerable deference to the Board and its
expertise in parole matters. Therefore, our review of a Parole
Board's decision is limited. Hare v. N.J. State Parole Bd., 368
N.J. Super. 175, 179 (App. Div.), certif. denied, 180 N.J. 452
(2004). "Parole Board decisions are highly individualized
discretionary appraisals, and should only be reversed if found to
be arbitrary or capricious." Id. at 179-80 (citations omitted).
We "must determine whether the factual finding could
reasonably have been reached on sufficient credible evidence in
the whole record." Id. at 179. In making this determination, we
"may not substitute [our] judgment for that of the agency, and an
agency's exercise of its statutorily-delegated responsibilities
is accorded a strong presumption of reasonableness." McGowan v.
N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)
6 A-2813-15T2 (citation omitted). Accordingly, "[t]he burden of showing that
an action was arbitrary, unreasonable or capricious rests upon the
appellant." Ibid.
An inmate serving a minimum term in excess of fourteen years
is ordinarily assigned a twenty-seven-month FET after a denial of
parole. See N.J.A.C. 10A:71-3.21(a)(1). However, in cases where
an ordinary FET is "clearly inappropriate due to the inmate's lack
of satisfactory progress in reducing the likelihood of future
criminal behavior[,]" the Board may impose a greater FET. N.J.A.C.
10A:71-3.21(d).
Here, we discern no basis to disturb the Board's decision.
The Board considered the relevant factors in N.J.A.C. 10A:71-3.11.
Its decision is supported by sufficient credible evidence in the
record and is entitled to our deference. We are satisfied that
the denial of parole and the imposition of a 120-month FET was
neither arbitrary, capricious nor unreasonable. See McGowan,
supra, 347 N.J. Super. at 565 (affirming the imposition of a
thirty-year FET based on appellant's high likelihood of
recidivism).
Affirmed.
7 A-2813-15T2