Opinion
DOCKET NO. A-1968-12T2
05-13-2014
OTTO KRUPP, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Otto Krupp, 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).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Fasciale.
On appeal from the New Jersey State Parole Board.
Otto Krupp, 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). PER CURIAM
Appellant Otto Krupp, an inmate of New Jersey State Prison, appeals from the November 28, 2012 final agency decision of the State Parole Board (Board), which affirmed the decision of the Board Panel (Panel) to deny parole and impose a thirty-six-month future eligibility term (FET). We affirm.
Following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2A:113-1 (count one), and murder while armed, N.J.S.A. 2A:151-5 (count two). On May 21, 1979, the court sentenced him on count one to a term of life imprisonment, and to a consecutive nine to ten years on count two.
Appellant was paroled on August 1, 2001. On September 13, 2010, he was returned to custody on a parole violation warrant for failing to: (1) report; (2) complete the electronic monitoring (EM) program; (3) obtain permission for out-of-state travel; and (4) refrain from contact with "J.D." in violation of a domestic violence restraining order. Appellant went to Guatemala without obtaining permission from his parole officer, and remained there for approximately four months before being apprehended and returned to New Jersey. Regarding the restraining order violation, appellant had a relationship with J.D. while on parole. She obtained a restraining order against him, which he violated on May 18, 2010. On November 17, 2010, appellant's parole was revoked and a fifteen-month FET was established.
Appellant became eligible for parole on November 2, 2011. A two-member Panel denied parole based on: appellant's prior criminal record; presently incarcerated for a multi-crime conviction; prior opportunity on probation failed to deter criminal behavior; current opportunity on parole has been revoked for technical violations, including failure to report, failure to complete the EM program; failure to comply with conditions of a domestic violence restraining order and failure to obtain permission for out-of-state travel; commission of an institutional disciplinary infraction which resulted in confinement in detention and administrative segregation; insufficient problem resolution, including a lack of insight into criminal behavior, minimization of conduct and failure to sufficiently address his substance abuse problem, as demonstrated by the panel interview and pre-parole reports; and the results of an objective risk assessment. The panel also considered mitigating factors, such as appellant's remaining infraction-free, participation in institutional programs, and a positive panel review. The panel denied parole and imposed a thirty-six-month FET.
In addition to the murder conviction, as an adult, appellant was convicted of contempt, possession of a controlled dangerous substance, and refusing to aid a police officer.
Appellant administratively appealed the Panel's determination to the Board. In a November 28, 2012 written decision, the Board affirmed the Panel's decision. Appellant filed this appeal, presenting the following contentions for our consideration:
POINT I
USING EVENTS WHICH [OCCURRED] WHILE APPELLANT WAS STILL ON PAROLE, AND USED TO REVOKE PAROLE AND GIVE APPELLANT A [FIFTEEN-MONTH] FET FOR PAROLE VIOLATION, NOW BEING USED TO DENY PAROLE AND GIVE APPELLANT AN ADDITIONAL [THIRTY-SIX MONTHS] IS DOUBLE JEOPARDY IF NOT TRIPLE JEOPARDY.
POINT II
THE STANDARD OF REVIEW FOR PAROLE CONSIDERATION OF A 2A CONVICTION IS WHETHER THERE IS A SUBSTANTIAL LIKELIHOOD THAT APPELLANT WILL COMMIT A NEW CRIME IF RELEASED ON PAROLE; THE BOARD FAILED TO CONSIDER MATERIAL FACTS AND FAILED TO DOCUMENT A SUBSTANTIAL LIKELIHOOD.
POINT III
THE BOARD'S DECISION IS [CONTRARY] TO WRITTEN BOARD POLICY OR PROCEDURES AND FAILED TO CONSIDER MATERIAL FACTS.
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)(E). We affirm substantially for the reasons expressed in the Board's written decision. We add only the following brief comments.
The Supreme Court has held that the Board's "decisions are highly 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (citation omitted). "Accordingly, the Board 'has broad but not unlimited discretionary powers,' and its determinations 'are always judicially reviewable for arbitrariness.'" Ibid. (citation omitted). The Board's decisions "depend[] on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979). As the Court observed, parole boards should focus on "'what a man is and what he may become rather than simply what he has done." Ibid. (citation omitted). In examining the record in light of the arguments raised, we are satisfied that the Board adhered to these principles and its own guidelines in rendering the final decision. The Board's findings were based "'on sufficient credible evidence in the whole record[,]'" Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 542 (App. Div.), certif. denied, 111 N.J. 649 (1988)), and are entitled to our deference. In the Board's application of those facts, we find nothing arbitrary, capricious, or unreasonable in its determination to deny parole and establish a thirty-six-month FET.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION