HECTOR GOMEZ v. NEW JERSEY STATE PAROLE BOARD (2013)

Hector Gomez appeals from the January 25, 2012 final agency decision of the New Jersey State Parole Board (Board), affirming the denial of parole by the Parole Board Panel (Panel).   We affirm.

In 1991, Gomez was convicted in Pennsylvania of possession with intent to distribute controlled dangerous substances and conspiracy.   He was sentenced to a term of four to eight years and was paroled in 1994.   In 2009, defendant pled guilty pursuant to a plea agreement to first degree manufacturing, distributing and dispensing controlled dangerous substances.  N.J.S.A. 2C:35–5(b)(1) and 5(a)(1).   He was sentenced as a second-degree offender to a nine-year prison term with a thirty-six month parole disqualifier.

In 2011, Gomez received an initial parole hearing before a hearing officer, who referred the matter to the Panel.   After a hearing, the Panel denied parole and established a fourteen-month future eligibility term (FET).   Gomez appealed to the full Board who affirmed the Panel's decision.

On appeal, Gomez raises only one issue:

PAROLE BOARD WRONGFULLY CONCLUDED THAT I LACKED INSIGHT INTO CRIMINAL BEHAVIOR AND MINIMIZED MY CONDUCT WHEN THE RECORD OF INCARCERATION PROVES OTHERWISE.

The scope of our review of administrative decisions of the Board is very limited, and “grounded in strong public policy concerns and practical realities.”  Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 200 (2001).  “The decision of a parole board involves ‘discretionary assessment [s] of a multiplicity of imponderables.’ ”  Id. at 201 (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L. Ed.2d 668, 677 (1979)).   We do not disturb the factual findings of the Board if they “ ‘could reasonably have been reached on sufficient credible evidence in the whole record.’ ”  Id. at 172 (quoting Trantino v. New Jersey State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998));  see also, McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App.Div.2002) (noting “[a]dministrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record”).   Further, we remain mindful that “[t]o a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals.”  Trantino V, supra, 166 N.J. at 201 (citation omitted).   We will not second-guess the Parole Board's application of its considerable expertise in sustaining the hearing officer's determination.   See, e.g., In re Vey, 272 N.J.Super. 199, 205 (App.Div.1993), aff'd, 135 N.J. 306 (1994).   Consequently, we reverse a Parole Board decision only when it is found to be arbitrary and capricious.  Trantino V, supra, 166 N.J. at 201.

Parole reviews are guided by N.J.S.A. 30:4–123.53(a), which provides in pertinent part:

An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report ․ or developed or produced at a hearing ․ indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole ․ if released on parole at that time.

We have interpreted “reasonable expectation” to mean a “substantial likelihood” the inmate will violate parole if released.   See Kosmin v. N.J. State Parole Bd., 363 N.J.Super. 28, 41 (App.Div.2003).   Further, the Administrative Code provides:

(a) 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.

(b) The ․ Board ․ may consider any other factors deemed relevant[.]

[N.J.A.C. 10A:71–3.11.]

Evaluated against these standards, we reject defendant's challenges to the sufficiency of the facts considered by the Board in reaching its determination.   The Board's decision to deny parole was based on defendant's prior criminal record;  the fact that the nature of his criminal activity became increasingly more serious;  a prior opportunity for parole did not deter criminal conduct;  and prior incarceration did not deter criminal conduct.   The Board's conclusion that Gomez minimized his conduct was supported in the record by his explanation that he sold two kilograms of cocaine because of family commitments and financial hardship.   Gomez's claim that the Board wrongfully concluded he lacked insight into his criminal behavior is undermined by his own recidivism, resorting to selling drugs within five years of his release on parole from his Pennsylvania sentence.

We conclude the Board's decision to deny parole is amply supported by substantial credible evidence in the record and, therefore, will not be disturbed.

Affirmed.

PER CURIAM