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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–0942–12T4

    Decided: March 14, 2014

Before Judges Reisner and Ostrer.Ramon Colas, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel;  Christopher C. Josephson, Deputy Attorney General, on the brief).

Ramon Colas (appellant or Colas) appeals from a September 26, 2012 final decision of the Parole Board (Board) denying parole and establishing a twenty-seven-month future eligibility term (FET).   For the reasons that follow, we affirm.

Colas, who was born in Cuba, had prior convictions in Cuba for robbery, assault on his wife, and failure to register for the draft, before he emigrated to the United States in 1980.   In 1982, he was arrested for a 1981 murder committed during a robbery;  he was convicted in 1983, and was sentenced to life in prison with a twenty-year parole bar.   Colas has applied for and been denied parole a number of times since becoming eligible for parole in 2002.   His last institutional infraction was in 2009, when he was found in possession of narcotics.   He was sixty-five years old at the time of his most recent parole hearing.

In a decision dated May 11, 2012, the Adult Panel (Panel) considered as mitigating factors appellant's participation in institutional programs and programs specific to behavior;  his average to above average institutional reports;  the fact that his last infraction was in 2009;  his attempts to enroll in programs to which he was not admitted;  and the fact that lost commutation time had been restored to him.

However, in concluding that there was a substantial likelihood that Colas would commit a new crime if released on parole, the Panel weighed the mitigating factors against the following reasons for denial:  his prior criminal record in Cuba;  the fact that his criminal offending became more serious over time culminating in a murder committed during a robbery;  that prior incarceration did not deter him from committing additional crimes;  his 2009 infraction was for drug use;  and his lack of insight into his criminal behavior.

With respect to appellant's lack of insight, the Panel stated:

[The inmate] seemed to concentrate only on how his crime affected him.   No remorse was expressed for his victim.   He was not able to describe his personality as a younger (violent) man.   Similarly, he was unable to describe his personality now.  “Old, sick.”   This lack of insight is consistent with prior evaluations.   This lack of progress is disturbing in a first degree murder case.   He is still fit enough and emotional enough to raise concerns for more acting out.   His periodic flirtation with drug use is also a concern.

The Panel indicated that in reaching its conclusions it considered the Panel interview with Colas, his pre-parole report, and confidential material.

Colas appealed the Panel's decision to the Board, arguing that he had accepted responsibility for his crimes, that the Panel's decision that he was likely to reoffend if released was unsupported by evidence, that it was unfair to rely on confidential information in making the parole decision, and that he had a constitutional right to counsel at the parole hearing.   In a four-page written decision, the Board rejected those contentions.

Among other arguments, the Board rejected appellant's argument that the Panel misunderstood his comments at the hearing, because he did not have an interpreter to assist him.   The Board indicated that Colas did not request an interpreter at the hearing.   The Board's decision further stated that the Board members had listened to the recording of the Panel hearing and found no indication that Colas did not understand the questions or that he appeared to need an interpreter.

On this appeal, Colas once again argues that he should have been provided with an interpreter at his hearing;  that there is insufficient evidence to show that he is likely to reoffend if released;  that he has taken advantage of educational and rehabilitative courses while in prison;  and that he is remorseful and unlikely to reoffend.   He also contends that the Board unfairly made use of a confidential report and that he was entitled to have an attorney appointed to represent him at the hearing.

We find no merit in those contentions.   Except as addressed below, they are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).

Because appellant's offenses were committed in 1981, he is subject to the version of N.J.S.A. 30:4–123.53(a) in effect at that time.   That standard requires that an inmate be released on parole unless “by a preponderance of the evidence ․ there is a substantial likelihood that the inmate will commit a crime under the law of this State if released on parole at such time.”   Ibid.

In evaluating the Board's decision on that issue, our scope of review is narrow.   Our courts have recognized

the essentially factual nature of a Parole Board's determination that “ ‘there is a substantial likelihood that an inmate will commit another crime if released,’ ” and that accordingly a reviewing court is obligated to “ ‘determine whether [that] factual finding could reasonably have been reached on sufficient credible evidence in the whole record.’ ”

We previously have recognized that Parole Board decisions are highly “individualized discretionary appraisals.”   Accordingly, the Board “has broad but not unlimited discretionary powers,” and its determinations “are always judicially reviewable for arbitrariness.”

[Trantino v. N.J. State Parole Bd., 166 N.J. 113, 172–73 (2001) (citations omitted).]

Gauged by those standards, we find nothing arbitrary in the Board's decision.   The Panel and the Board considered all applicable factors, see N.J.A.C. 10A:71–3.11(a) and (b), and weighed them appropriately.   We owe deference to the Panel's opportunity to hear appellant's answers to their questions and to evaluate his credibility.   See State v. Locurto, 157 N.J. 463, 470–74 (1999).   While we cannot disclose the contents of the confidential psychological evaluation, we have read it carefully, and it also supports the Board's decision that Colas is substantially likely to commit another crime if released at this time.   The Board gave Colas credit for the positive factors in his record, but we find no basis to second-guess its conclusion that the negative factors outweighed the positive factors.

Likewise we find no merit in appellant's procedural arguments.   The Board's regulations provide:  “The inmate shall have the right to be aided by an interpreter, if such aid is determined to be necessary by the hearing officer, Board panel or Board.”  N.J.A.C. 10A:71–3.13(f).  However, the Board determined that Colas did not request an interpreter and did not appear to need one.   Colas has not provided us with any record evidence that the Board was incorrect.   Further, it is well established that an inmate is not entitled to counsel at a parole hearing.  Puchalski v. N.J. State Parole Bd., 104 N.J.Super. 294, 300 (App.Div.1969).



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