PEDRO VASQUEZ 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NOT FOR PUBLICATION WITHOUT THE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-5364-17T4

PEDRO VASQUEZ,

Plaintiff-Appellant,

v.

NEW JERSEY STATE

PAROLE BOARD,

Defendant-Respondent.

_____________________________

Submitted May 26, 2020 – Decided September 9, 2020

Before Judges Rothstadt and Mitterhoff.

On appeal from the New Jersey State Parole Board.

Pedro Vasquez, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for

respondent (Melissa H. Raksa, Assistant Attorney

General, of counsel; Christopher Josephson, Deputy

Attorney General, on the brief).

PER CURIAM

Pedro Vasquez appeals from the New Jersey State Parole Board's (Board)

February 27, 2019 1 final agency decision denying him parole and imposing a

sixty-month future eligibility term (FET). On appeal, he asserts that the Board's

decision was not supported by the record. Additionally, he contends the Board

erred in failing to explain why it withheld a confidential document from him.

We affirm the Board's denial of parole but remand for the Board to articulate its

reason for nondisclosure of the confidential document.

Vasquez is serving a life sentence, with a mandatory minimum of thirty

years, for the 1988 murder of his girlfriend. Vasquez and his girlfriend were

arguing, when a physical altercation ensued. Vasquez strangled and stabbed his

girlfriend, which caused her death, and then dismembered her body into fourteen

parts and discarded the parts in various locations throughout Newark.

Vasquez became eligible for parole on March 3, 2018. He received an

initial hearing on December 29, 2017, and the hearing officer referred the matter

to a Board panel. On January 8, 2018, a two-member panel held a hearing and

referred Vasquez for a full Board hearing, pursuant to N.J.A.C. 10A:71-3.18(c).

1

The notice of appeal indicates a final agency decision dated June 6, 2018, but

this is incorrect, as the June 6, 2018 decision was the first decision the Board

issued after the parole hearing. After Vasquez filed this appeal on July 16, 2018,

we temporarily remanded the matter for issuance of a final agency decision.

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After a hearing on April 3, 2018, the full Board denied Vasquez parole

and referred the matter for establishment of a FET that might be in excess of

administrative guidelines. The Board based its decision on the serious nature of

the offense, incarceration for multiple offenses,2 and insufficient problem

resolution, evinced by Vasquez's lack of insight into his criminal behavior and

minimization of his conduct. In mitigation, the Board considered Vasquez's lack

of a prior offense record, lack of infractions while incarcerated, program

participation revealing a favorable institutional adjustment, minimum custody

status, and risk assessment evaluation indicating a low risk of recidivism.

On June 6, 2018, the full Board established a sixty-month FET.3 In

establishing a FET outside the administrative guidelines, the Board relied on the

same factors supporting its denial of parole, and it noted that a confidential

document played a "significant role" in establishing the FET. The Board found

that Vasquez "downplayed how the relationship with [his] girlfriend had

2

In addition to first-degree murder, Vasquez was also convicted of and

sentenced to a concurrent three-year term for third-degree possession of a

weapon for an unlawful purpose.

3

The FET commenced on Vasquez's parole eligibility date of March 3, 2018,

and it will be reduced by commutation, work, and minimum custody credits.

Accordingly, Vasquez's projected parole eligibility date is in February 2021.

The Board considered this information when establishing the sixty-month FET.

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deteriorated negatively," revealing that he was still "unable to understand the

depth of the behavioral and emotional issues that affected [his] violent decision-

making" and could not "recognize stressors, cues and triggers that negatively

impact upon [him]." Vasquez needed to make more progress in acknowledging

his "emotional distress and feelings of anger [that] dictated [his] negative

behavior."

Vasquez appealed, and on February 27, 2019, the full Board affirmed the

denial of parole and the imposition of the sixty-month FET. The Board

reiterated that Vasquez "exhibit[ed] insufficient problem resolution" and noted

that although he participated in rehabilitative programs and may have made

some progress, he gained little insight into the causes of his criminal behavior.

On appeal, Vasquez raises the following points for our consideration:

POINT I:

THE PAROLE BOARD'S DECISION TO DENY

PAROLE AND SET A FET DATE OUTSIDE THE

GUIDELINES IS NOT SUPPORTED BY A

PREPONDERANCE OF THE EVIDENCE IN THE

RECORD THAT THERE IS A SUBSTANTIAL

LIKELIHOOD THAT APPELLANT WILL COMMIT

A CRIME UNDER THE LAWS OF THIS STATE IF

RELEASED ON PAROLE AND IS ARBITRARY

AND CAPRICIOUS AS IT IS NOT BASED ON

RATIONAL OR REASON.

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POINT II:

THE PAROLE [BOARD] FAILED TO ARTICULATE

THE REASONS FOR WITHHOLDING THE

CONFIDENTIAL MATERIAL USED TO DENY

PAROLE AND SET A FET OF [SIXTY] MONTHS

(Not raised below).

"Board decisions are highly 'individualized discretionary appraisals,'" and

such "determinations 'are always judicially reviewable for arbitrariness.'"

Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 173 (2001) (first

quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973); then

quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)); accord Acoli

v. N.J. State Parole Bd., 224 N.J. 213, 222-23 (2016) ("Judicial review of the

Parole Board's decisions is guided by the arbitrary and capricious standard that

constrains other administrative action."). Therefore, we will uphold the Board's

decision if it applied the correct legal principles and its factual findings are

supported by sufficient, credible evidence in the record. Trantino v. N.J. State

Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998) (quoting N.J. State Parole Bd.

v. Cestari, 224 N.J. Super. 534, 547 (App. Div. 1988)).

After considering the record in light of the applicable legal principles, we

affirm the denial of parole substantially for the reasons expressed in the Board's

well-reasoned decision. We add the following.

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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 . . . if released on

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

2000) (quoting L. 1979, c. 441, § 9); N.J.A.C. 10A:71-3.10(a). Under this

standard, the Board must consider the aggregate of all pertinent factors set forth

at N.J.A.C. 10A:71-3.11(b). In reaching its decision, the Board considered its

interview of Vasquez, his pre-parole report, and his case file documents,

including the confidential document, and it evaluated relevant statutory factors,

even finding several mitigating factors. We agree with the Board's conclusion

that Vasquez's lack of insight into the causes of his violent acts warranted a

finding of a substantial likelihood that he would commit another crime if

released. Under these circumstances, denial of parole was well within the

Board's discretion.

Likewise, we discern no basis to disturb the sixty-month FET. Ordinarily,

an inmate serving a sentence for murder is assigned a twenty-seven-month FET,

increased or decreased by up to nine months at the Board's discretion. N.J.A.C.

10A:71-3.21(a), (c). However, the Board may depart from this standard if, upon

consideration of the factors enumerated in N.J.A.C. 10A:71-3.11, it "is clearly

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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). Given the

Board's well-supported finding that Vasquez failed to demonstrate satisfactory

progress after thirty years, an additional thirty-three months over the ordinary

term is not arbitrary or unreasonable.

However, we are troubled that the Board did not articulate a reason in its

files for withholding from Vasquez the confidential document on which it

significantly relied in establishing the FET. When the Board declines to disclose

confidential documents to an inmate, it must identify the document as

confidential and also note the reason for nondisclosure in its files. N.J.A.C.

10A:71-2.2(c); Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 126

(App. Div. 1986). We discern no notation in the Board's files explaining that it

withheld the document to avoid interfering with Vasquez's rehabilitation or his

relationship with his therapist or to otherwise ensure the safe operation of the

prison. Thompson, 210 N.J. Super. at 123. Because the Board did not justify

the nondisclosure in its files, we remand the matter to the Board to comply with

this requirement. Should the Board determine that disclosure is appropriate,

Vasquez may review the withheld document, and the Board shall reconsider the

FET.

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To the extent we have not addressed Vasquez's remaining arguments, we

conclude they lack sufficient merit to warrant discussion in a written opinion.

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

Affirmed in part and remanded in part for further proceedings consistent

with this opinion. We do not retain jurisdiction.

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