Opinion
DOCKET NO. A-4127-12T3
09-19-2014
HECTOR FIGUEROA, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Hector Figueroa, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from the New Jersey State Parole Board. Hector Figueroa, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief). PER CURIAM
Hector Figueroa is incarcerated in Northern State Prison serving a life sentence for murder, as that offense was defined under N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2, and an aggregate consecutive term of thirty years with fifteen years of parole ineligibility for two counts of second degree aggravated assault, as defined in N.J.S.A. 2C:12-1(b)(1). Figueroa now appeals the decision of the State Parole Board denying him parole and imposing a 120-month future eligibility term ("FET").
These statutes were repealed effective September 1, 1979.
Appellant raises three arguments in support of this appeal: (1) the Board's decision was arbitrary and capricious because it merely conducted a "mechanical" or perfunctory review of his application; (2) the guidelines adopted by the Board for imposing an FET, as reflected in N.J.A.C. 10A:71-3.21(d)(4), are void for vagueness and therefore unconstitutional; and (3) the FET imposed by the Board here must be vacated because it is higher than the FET the Board previously imposed, despite the absence of "negative intervening factors." We discern no legal basis to interfere with the Board's decision and affirm.
Appellant is currently seventy-one years old. He was charged in 1974 with causing the death of a man by stabbing him in the heart during a physical altercation. He was tried before a jury and convicted of murder in 1975. The court sentenced him to life imprisonment. He was paroled on June 22, 1992. Less than nine months later, in March 1993, Figueroa was arrested and charged with stabbing a man and a woman he referred to as an "ex-girlfriend." He stabbed the woman in the heart, and when the man came to the woman's aid, Figueroa stabbed him in the throat.
The current New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to -104.9, was adopted after the repeal of the statutory scheme in effect at the time appellant was sentenced in 1975. The Code now includes mandatory periods of parole ineligibility for violent crimes. See No Early Release Act, N.J.S.A. 2C:43-7.2 (mandating an eighty-five percent period of parole ineligibility for certain violent crimes, including murder).
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Figueroa was tried before a jury and convicted in October 1994 of two counts of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The court sentenced him in November 1994 to an aggregate term of thirty years, with fifteen years of parole ineligibility. On January 11, 1995, the Board revoked his parole for the murder he committed in 1974. The thirty-year sentence imposed by the court in 1995 runs consecutive to the life imprisonment imposed in 1975 because appellant committed the two aggravated assaults while on parole for murder.
Figueroa exhausted the Board's administrative appellate process before appealing to this court. We review the final decision of the Board, which is reflected in a letter-opinion addressed to appellant, dated March 27, 2013. We incorporate by reference the detailed procedural history described therein, as well as the reasoning for denying appellant parole and imposing a 120-month FET.
In Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19 (1998), our Supreme Court articulated the standard for determining the validity of the Board's decision to deny an inmate parole. We must determine:
(1) whether the agency's action violates express or implied legislative policy, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Id. at 24 (internal citations omitted).]
Based on the record before us, and applying the standards articulated above, we discern no basis to interfere with the Board's judgment. The Board correctly concluded, by a preponderance of the evidence, that there is a reasonable probability that appellant will engage in criminally violent behavior if released. N.J.S.A. 30:4-123.53(a). Appellant's arguments attacking the Board's decision lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the Board in its final decision dated March 27, 2013. R. 2:11-3(e)(1)(D).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION