EDWIN RIVERA VS. NEW JERSEY STATE PAROLE BOARD(NEW JERSEY STATE PAROLE BOARD)

NOT FOR PUBLICATION WITHOUT THE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