TARSIS MATOS VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 13, 2019
• Docket: A-2179-17T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2179-17T2

TARSIS MATOS,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent. _______________________

Submitted January 29, 2019 – Decided February 13, 2019

Before Judges Suter and Geiger.

On appeal from the New Jersey State Parole Board.

Tarsis Matos, appellant, pro se.

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

PER CURIAM Appellant Tarsis Matos appeals from a November 22, 2017 final agency

decision of the New Jersey State Parole Board (Board) denying him parole and

establishing a 120-month future eligibility term (FET). We affirm.

Matos is incarcerated at South Woods State Prison, serving a life sentence

subject to a thirty-year period of parole ineligibility for murder, kidnapping, and

multiple counts of aggravated assault and possession of a weapon for an

unlawful purpose. On March 7, 1987, Matos shot and killed an acquaintance in

an apartment in Newark. He then pointed a gun at another occupant and forced

him to leave the apartment. Matos held the second victim at gunpoint for two

hours before releasing him in a different section of Newark. Matos fled to

Florida and was arrested on May 26, 1987. Matos was charged, indicted, and

convicted by a jury of all counts.

These were not Matos's first offenses. In March 1983, Matos was

sentenced in New York to an indeterminate term of one to three years for

criminal possession of a weapon. He was paroled in May 1984 and absconded.

On July 28, 1985, Matos shot and killed a person at a dance club in New York

City while a fugitive. Matos was convicted of murder and weapons offenses and

sentenced on those offenses to a term of twenty-five years to life, subject to a

twenty-five-year minimum, to run consecutively to his New Jersey sentence.

A-2179-17T2 2 Matos has committed six institutional infractions while serving his prison

term in New Jersey, including four infractions for indecent exposure (prohibited

act .053, N.J.A.C. 10A:4-4.1(a)(3)(v)). His most recent infraction for indecent

exposure was committed in 2016.

Matos first became eligible for parole on May 24, 2017. A parole hearing

officer referred the case to a Board panel for a hearing. The two-member Board

panel denied parole on April 7, 2017, determining there was a substantial

likelihood Matos would commit a new crime if released on parole at this time.

The Board panel expressed the following reasons for denying parole: nature and

circumstances of the offenses (murder, kidnapping, possession of a weapon,

aggravated assault); prior offense record is extensive; offense record is

repetitive; nature of criminal record increasingly more serious; committed to

incarceration for multiple offenses; prior opportunities on parole revoked due to

commission of new offenses; prior opportunity on parole and prior incarceration

failed to deter criminal behavior; numerous, persistent institutional infractions

resulting in loss of commutation time and confinement in detention and

administrative segregation, with last infraction on January 16, 2017; insufficient

problem resolution due to lack of insight into criminal behavior and substance

abuse problem not having been sufficiently addressed (alcohol); inmate has not

A-2179-17T2 3 significantly addressed his decision-making skills; inmate's aggressive and at

times violent behavior along with handgun possession; inmate continues to

violate institutional rules and regulations; inmate has little to no remorse for the

victims; this is inmate's second murder in two years; and inmate has four

weapons convictions and was on parole in New York at the time of the instant

offenses.

The Board panel found the following mitigating factors: participation in

programs specific to behavior; participation in institutional programs;

institutional reports reflect favorable institutional adjustment; attempt made to

enroll in programs but was not admitted due to wait list; and risk assessment

evaluation.

The two-member Board panel referred the case to a three-member panel

for establishment of a FET that may be in excess of the Board's presumptive

schedule. On June 7, 2017, a three-member Board panel established a 120-

month FET based on the same reasons expressed by the two-member panel in

denying parole.1 The three-member Board panel also considered the same

1 According to respondent, Matos's projected parole eligibility date is in June 2023, based on the application of commutation, work, and minimum custody credits pursuant to N.J.S.A. 30:4-123.53(a).

A-2179-17T2 4 mitigating factors as the two-member Board panel, and a letter of mitigation

submitted by Matos.2 The three-member Board panel determined "that the

factors supporting the denial of parole, collectively, are of such a serious nature

as to warrant the setting of a [FET] which differs from the presumptive term of

[twenty-seven] months (+/- [nine] months)." Based on its "comprehensive

review of the entire record," the three-member Board panel found it "clear" that

Matos "remain[s] a substantial threat to public safety." The panel also found

that after thirty years of incarceration, Matos:

Present[s] as not having conducted a true introspection into [his] past violent behavior, nor [does he] acknowledge the severity of [his] actions. [Matos's] negative personality traits have affected [his] behavioral choices and impelled [him] to behave in an anti-social manner in the future; and

[Does] not recognize stressors and cues that have negatively impacted [his] decision making, leading to a life marked with repeated contact with the criminal justice system. [Matos] offered to the Board panel that [he] committed the present offenses because [he] needed money, but offered nothing as to why [he] chose violent acts as a resolution to meet those needs. Concerns remain that [Matos] will not be able to appropriately process negative and/or stressful situations in the future; and

2 The three-member panel's narrative decision also mistakenly included a discussion of another inmate's case, which has no relevance to this matter. The Board moved to remand the appeal to allow the three-member panel to amend its narrative decision. We denied the motion. A-2179-17T2 5 Present[s] as an individual who requires additional programming/counseling to address the issues detailed within this Notice.

The three-member Board panel also found establishing an FET less than 120

months "would be wholly inconsistent with the conclusion that [Matos has] not

shown the requisite amount of rehabilitative progress in reducing the likelihood

of future criminal activity."

Matos appealed the panels' decisions to the full Board, arguing: (1) the

Board panel failed to consider material facts; (2) the Board panel failed to

document that a preponderance of the evidence indicates a substantial likelihood

that the inmate will commit a crime if released on parole; (3) Matos should have

been provided an interpreter in accordance with N.J.A.C. 10A:71-3.13(f); (4)

the Board panel established an FET prior to a notice of decision being issued on

the administrative appeal; (5) the denial of parole was contrary to the evidence

in the record and an abuse of discretion; and (6) the 120-month FET is excessive

and unjustly punitive.

The full Board affirmed, finding no merit in Matos's challenges to the

denial of parole and the length of the FET. The Board found the Board panel

"considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and

fully documented its decision pursuant to N.J.A.C. 10A:71-3.18(f)." The Board

A-2179-17T2 6 concurred with the findings reached by the two-member and three-member

Board panels, rejecting his claim "the Board panel demonstrated personal

interest, prejudice or bias." This appeal followed.

Matos raises the following arguments on appeal: (1) the Board panel

denied appellant's right to procedural due process by violating written Board

policy; (2) the denial of parole was arbitrary and capricious because the reasons

stated for the denial were inadequate and the denial was not supported by

credible evidence in the record; (3) the Board panel utilized erroneous material

facts to deny parole; (4) the three-member Board Panel failed to consider

appellant's participation in rehabilitation; (5) the usage of psychological

concepts such as lack of insight, remorse, and empathy as a substantial basis for

denying parole was an abuse of discretion due to the vagueness of these

undefined concepts and their highly subjective nature; and (6) the 120-month

FET is excessive and unreasonable.

Our review of the Board's decision is deferential. J.I. v. N.J. State Parole

Bd., 228 N.J. 204, 230 (2017). That is so because "Parole Board 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)), and are presumed valid, McGowan v. N.J. State Parole

A-2179-17T2 7 Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). We will not disturb the Board's

determination "unless there is a clear showing that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record." J.B. v. N.J. State Parole

Bd., 229 N.J. 21, 43 (2017) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)).

The burden is on the inmate to demonstrate the Board's actions were

unreasonable. McGowan, 347 N.J. Super. at 563.

Defendant is serving a sentence for an offense committed before August

18, 1997. Therefore, "the issue before us is governed by the standard in N.J.S.A.

30:4-123.53(a) and 30:4-123.53(c) prior to the amendment of those statutes on

that date." Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.

2000) (citing N.J.A.C. 10A:71-3.10). For offenses committed before August 18,

1997, "the Parole Board may deny parole release if it appears from a

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

inmate will commit a crime under the laws of this State if released on parole at

such time.'" Ibid. (quoting L. 1979, c. 441, § 9).

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

including the psychological evaluation and other materials in the confidential

appendix, we conclude Matos's arguments are without merit. We discern no

basis for disturbing the Board's decision to deny parole and impose the FET,

A-2179-17T2 8 which is amply supported by the record, and affirm substantially for the reasons

expressed by the Board in its written decision. We add the following comments.

We find no basis to conclude the Board's decision was arbitrary,

capricious, or unreasonable, that it lacked fair support in the record, or that i t

violated Matos's constitutional rights or any regulations or written Board

policies. The record demonstrates that the Board considered "the aggregate of

all of the factors which may have any pertinence," Beckworth, 62 N.J. at 360,

and "focus[ed] its attention squarely on the likelihood of recidivism,"

McGowan, 347 N.J. Super. at 565. The Board acted well within its bounds in

finding by a preponderance of the evidence that Matos would likely commit a

new crime if released on parole at this time.

Concerning the FET, an inmate serving a minimum term greater than

fourteen years is ordinarily assigned a twenty-seven-month FET after a denial

of parole. N.J.A.C. 10A:71-3.21(a)(1). A three-member panel may impose a

FET in excess of administrative guidelines 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." N.J.A.C. 10A:71-3.21(d).

The Board considered the mitigating and aggravating factors, and acted well

within its authority in increasing defendant's FET.

A-2179-17T2 9 Matos's remaining arguments are without sufficient merit to warrant

extended discussion in a written opinion beyond the following brief comments.

R. 2:11-3(e)(1)(E).

Matos claims he was denied due process because he was not provided an

interpreter at his Board panel hearing. We disagree. The Board reviewed the

electronic recording of the Board panel hearing and found Matos

understood the Board panel's questions as [his] answers were appropriately responsive, and [Matos], in turn, asked questions of the Board panel which were answered. At no time did [Matos] request the services of an interpreter or express [an] inability to understand the hearing process or questions posed by the Board panel.

In addition, the psychological evaluation report dated November 16, 2016, states

Matos "was given the option of utilizing a Spanish language interpreter and he

clearly declined the need for such. His level of comprehension and

communication did appear sufficient for evaluation purposes."

Matos also complains he was denied due process because the Board did

not provide a Board representative to assist him during the Board panel hearing.

An inmate is entitled to the assistance of a Board representative in his

preparation for appearances before the hearing officer and Board panel .

N.J.A.C. 10A:71-2.11, -3.13(g). However, neither the regulations nor the

A-2179-17T2 10 Federal or State Constitutions require the Board to provide a representative t o

appear on the inmate's behalf at an initial parole eligibility hearing. See Gerardo

v. N.J. State Parole Bd., 221 N.J. Super. 442, 448-49 (App. Div. 1987) (setting

forth the minimal due process rights applicable to a hearing to grant or deny

parole). This is so because a parole "rescission determination concerns liberty

interests that are greater than those involved in an initial eligibility

determination." Id. at 449.

Matos argues that insufficient problem resolution and lack of insight are

not factors the Board may consider when deciding whether to grant or deny

parole. We are unpersuaded by this argument. Insufficient problem resolution

and lack of insight are relevant to the underlying causes for an inmate's

criminality and likelihood of reoffending. See e.g., McGowan, 347 N.J. Super.

at 558 (discussing the Board's findings regarding the inmate's lack of insight

into what caused him to commit his offenses).

Lastly, Matos complains the three-member Board panel based its decision

on incorrect facts. We disagree. The narrative decision contains three

paragraphs discussing the facts in a different case. We consider the erroneous

inclusion of those paragraphs to be a mere scrivener's error that escaped

A-2179-17T2 11 detection. Neither the Board panel nor the Board based their decisions on those

extraneous facts.

Affirmed.

A-2179-17T2 12