GEORGE MARX v. NEW JERSEY STATE PAROLE BOARD

On November 22, 1991, while on probation, appellant followed

a female bank employee from a parking lot into a bank in Gloucester

Township. He threatened the female with an HIV-infected hypodermic

needle, forced her to allow him to accompany her into the bank,

where he held her against her will and attempted to rob the bank.

Officers entered the bank, where appellant pointed a gun at them,

resulting in the officers shooting and wounding appellant. Charged

with fifteen counts, appellant pled guilty to first-degree

kidnapping, first-degree armed robbery, and two counts of fourth

degree aggravated assault. On May 7, 1993, he was sentenced to

an extended term of sixty years in prison with a twenty-year period

of parole ineligibility.

Upon appellant's arrest, the police learned of his

involvement in a drug-trafficking operation. Charged with five

counts, appellant pled guilty to second-degree possession of

cocaine with intent to distribute. On May 7, 1993, he was also

sentenced to a concurrent term of ten years in prison with four

years of parole ineligibility.

On September 14, 1993, appellant was separately indicted for

second-degree conspiracy to distribute cocaine. He pled guilty







3 A-3109-14T4





to this charge and was sentenced to a concurrent term of ten years

in prison on July 8, 1994.

A two-member parole panel denied appellant parole and

referred appellant to a three-member panel to impose an FET outside

of the administrative guidelines. After reviewing the decision

of the two-member panel, a three-member panel denied parole and

imposed a sixty-month FET. On September 24, 2014, the full Board

affirmed the three-member panel's decision, denying appellant

parole and imposing the sixty-month FET for the same reasons

articulated by both the two-member and the three-member panels.

Appellant appeals. His pro se brief argues:

THE BOARD PANEL'S DECISION TO DENY PAROLE IS ARBITRARY AND CAPRICIOUS WITH FAILURE TO SUPPORT BY A PREPONDERANCE OF EVIDENCE THAT APPELLANT WOULD BE SUBSTANTIALLY LIKELY TO COMMIT ANOTHER CRIME IF RELEASED ON PAROLE.



He also argues:



THE NEW JERSEY STATE PAROLE BOARD ABUSED ITS DISCRETION IN DECIDING TO EXTEND DEFENDANT[']S FUTURE ELIGIBILITY TO 60 MONTHS.



Counsel was appointed and filed a reply brief arguing the

Parole Board erred in denying parole and in imposing an FET.

II.

"[T]he Parole Board is the 'agency charged with the

responsibility of deciding whether an inmate satisfies the

criteria for parole release under the Parole Act of 1979.'" Acoli







4 A-3109-14T4





v. N.J. State Parole Bd., 224 N.J. 213, 222 (citation omitted),

cert. denied, __ U.S. __, __ S. Ct. __, 196 L. Ed. 2d 37 (2016).

The Board's discretionary powers are broad. Trantino v. N.J.

State Parole Bd., 166 N.J. 113, 173 (2001). We will disturb the

Board's decisions only if "arbitrary, capricious or unreasonable,

or [if] not 'supported by substantial credible evidence in the

record as a whole.'" Id. at 191–92 (emphasis omitted) (citation

omitted); see also Acoli, supra, 224 N.J. at 222–23.

Our "limited scope of review is grounded in strong public

policy concerns and practical realities." Trantino, supra, 166

N.J. at 200. "[T]he Parole Board makes 'highly predictive and

individualized discretionary appraisals'" which "must

realistically be recognized to be inherently imprecise, as they

are based on 'discretionary assessment[s] of a multiplicity of

imponderables.'" Acoli, supra, 224 N.J. at 222 (second alteration

in original) (citation omitted). We must hew to our standard of

review.

III.

Appellant argues the evidence did not demonstrate a

substantial likelihood that he would commit a crime if released

on parole. Prior to 1997, the law required release of an inmate

eligible for parole unless there was "a substantial likelihood

that the inmate will commit a crime." N.J.S.A. 30:4-123.53(a)







5 A-3109-14T4





(1979). That law is applicable to appellant. Acoli, supra, 224

N.J. at 235-36.

The Board properly found a substantial likelihood that

defendant would commit a crime if released on parole. The Board

cited that prior to the crimes related above, appellant had an

extensive history of criminal activity with multiple convictions,

including murder, armed robbery, carrying a prohibited weapon,

burglary, fraud, conspiracy to distribute a controlled dangerous

substance, and receiving stolen property. For those crimes,

appellant has previously served two lengthy terms of incarceration

during which he was convicted of three escape attempts. Appellant

had been afforded both parole and probation and violated both.

Additionally, the Board relied on appellant's responses to

questions posed by the two-member panel. The Board determined

those responses indicated appellant's insufficient problem

resolution, specifically that he lacked insight into and minimized

his criminal behavior, and his attempt to deflect responsibility

for his past criminal conduct. Courts are "required to accord

deference to the findings of the administrative agency that are

substantially influenced by its opportunity to hear and see the

witness[] and to have the 'feel of the case,' an opportunity which

a reviewing court cannot enjoy." Trantino, supra, 166 N.J. at 200

(citation omitted).







6 A-3109-14T4





Appellant's return to criminal activity after his earlier

incarcerations also contributed to the Board's finding that there

was a substantial likelihood appellant would submit to pressure

once again and commit a crime if released on parole. The Board

further relied on a psychiatric risk assessment evaluation that

found appellant posed a medium risk of recidivism. No expert

opinion supported releasing defendant. Cf. id. at 191 (finding

the Board ignored earlier expert evaluations "all highly

supportive of parole following halfway house placement," its own

expert's finding that Trantino "had a 'low' likelihood of

recidivism," and a large number of psychological evaluations

"supportive of parole").

The Board also considered mitigating factors, including

appellant's lack of infractions during this incarceration and his

participation in behavior-specific programs, such as therapeutic

and job skill programs. Appellant argues the mitigating factors

show there is no substantial likelihood he would commit a crime

if again released on parole. The Board considered the mitigating

factors but ultimately found they were not enough to overcome the

overwhelming evidence that appellant was likely to engage in future

criminal behavior.

Appellant asserts that he presented an adequate parole plan,

given that he is in his mid-seventies. His plan was premised on







7 A-3109-14T4





a promise of work in construction upon his release and a transition

to a halfway house with no long-term housing solution proposed.

The Board could properly find that this parole plan was inadequate

because appellant's past behavior demonstrated that he requires a

stable and supportive living arrangement. See N.J.A.C. 10A:71

3.11(b)(14).

Accordingly, the Board's decisions to deny parole and to set

a sixty-month FET were not arbitrary, capricious or unreasonable

and were supported by sufficient, credible evidence in the record.

An inmate serving a sentence for kidnapping "shall serve 27

additional months," but that period can be increased if it "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(a)(1), (d).

Here, the Board reasonably found a twenty-seven-month period was clearly inappropriate, and sixty months was appropriate due to appellant's failure to demonstrate "the requisite amount of rehabilitative progress in reducing the

likelihood of future criminal activity." Affirmed.