Opinion
DOCKET NO. A-5237-12T4
07-14-2014
ANTHONY RUSSO, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
John Vincent Saykanic, attorney for appellant. 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NOT FOR PUBLICATION WITHOUT THE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 Harris and Kennedy.
On appeal from New Jersey State Parole Board.
John Vincent Saykanic, attorney for appellant.
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).
Appellant filed a pro se supplemental brief. PER CURIAM
Anthony Russo appeals from the May 29, 2013 final decision of the New Jersey State Parole Board (Board) denying his application for parole and establishing a thirty-four month future eligibility term (FET). We affirm.
Russo, now seventy-five years old, was convicted of the capital murder of an off-duty police officer in 1961 and sentenced to death. In January 1972 the death sentence was commuted to a term of life imprisonment. On August 12, 1975, after serving fourteen years in prison, Russo was paroled.
On January 17, 1972, the New Jersey Supreme Court in State v. Funicello, 60 N.J. 60, 67-68, cert. denied, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972), upon remand of the United States Supreme Court, "accept[ed] the conclusion that the United States Supreme Court has declared the death penalty to be unconstitutional under our statute." Consequently, all "defendants [then] under a death sentence," including Russo, received a commuted life sentence nunc pro tunc to the date the death sentence was initially imposed. Ibid.
However, in September 1981, Russo was charged with receipt of stolen property and removing a vehicle identification number. On February 26, 1982, a jury returned a verdict finding Russo guilty of both charges. He was sentenced to a four year term, with a two-year parole disqualifier.
Russo was paroled again on April 24, 1984, but was arrested one month later in connection with the purchase of 5000 pounds of marijuana. In October 1986, a jury found Russo guilty of conspiracy and various controlled dangerous substance offenses. Russo received a fifty-year aggregate term, with a twenty-year parole disqualifier, to run consecutive to his sentence for the parole violation on the murder charge.
In March 2003, while serving his sentence in the minimum security unit at Bayside State Prison, Russo escaped from custody. Eventually Russo turned himself in to police and was charged with escape. In December 2003, he was sentenced to a three year term, to run consecutive to his then current sentences.
Since 1992, while incarcerated, Russo was found guilty thirteen times of committing prohibited acts, including four asterisk charges. See N.J.A.C. 10A:4-4.1(a) ("Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions."). Russo's last disciplinary infraction occurred in September 2006.
Russo's most recent parole application was denied on May 29, 2013. The Board agreed with the conclusions of the Adult Panel, finding that "a preponderance of the evidence indicates that there is a reasonable expectation that [Russo] would violate the conditions of parole if released on parole at this time." The Board affirmed the denial of parole and the imposition of a thirty-four month FET.
The Board accepted the Adult Panel's identification of the following mitigating factors: participation in institutional programs, some specific to Russo's behavior; average to above average institutional reports; attempts to enroll and participate in programs; achievement of minimum custody status; and restoration of commutation time.
The follow factors weighed against Russo's application: the serious nature of his offenses; extensive and repetitive criminal record; incarceration for a multi-crime conviction; current opportunity for parole was revoked for commission of a new offense; prior opportunities on parole and probation, along with prior incarcerations, failed to deter criminal behavior; insufficient problem resolution, lack of insight into criminal behavior and minimization of conduct; and the results of an objective risk assessment evaluation.
Russo raises the following issues on appeal:
I. THE NEW JERSEY STATE PAROLE BOARD DECISION TO DENY PAROLE AND TO ESTABLISH A THIRTY-FOUR-MONTH FUTURE ELIGIBILITY TERM SHOULD BE REVERSED AS THE BOARD FAILED TO SUPPORT ITS DECISION BASED UPON THE RECORD BEFORE IT AS MR. RUSSO HAS "MAXED OUT" OF ALL POSSIBLE SENTENCES; THE DECISION VIOLATES DUE PROCESS, EQUAL PROTECTION, AND THE EIGHTH AMENDMENT AND MR. RUSSO SHOULD BE RELEASED ON PAROLE FORTHWITH.
II. THE NEW FET IS BASED ON INCORRECT PAROLE CALCULATIONS AND THE PAROLE BOARD'S DECISION IS NOT SUPPORTED BY THE RECORD; MR. RUSSO MUST BE RELEASED ON PAROLE FORTHWITH.
III. MR. RUSSO SHOULD BE IMMEDIATELY PAROLED AS THE PAROLE BOARD'S DECISION WAS ARBITRARY AND NOT BASED ON THE RECORD.
As an administrative agency, the actions of the Board are presumed valid and reasonable. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). Therefore, judicial review of parole determinations is limited to an evaluation of whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. Ibid.; Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App.
Div. 2001). Our review is limited to a determination of whether the agency's findings could reasonably have been reached on the credible evidence in the record. Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998). We will set aside an agency decision only "'if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988) (quoting 613 Corp. v. N.J. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).
The Board's decisions are considered "'highly individualized discretionary appraisals[.]'" Williams, supra, 336 N.J. Super. at 7 (quoting Trantino IV, supra, 154 N.J. at 25). Accordingly, when reviewing an inmate's parole record and rendering a release decision, "the Board 'has broad but not unlimited discretionary powers.'" Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 173 (2001) (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)); see also Greenholtz v. Nebraska Penal & Corr. Complex Inmates, 442 U.S. 1, 9-10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979) ("The parole-release decision . . . depends 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.").
The Parole Act, which governs Russo's application, states:
Although Russo's initial conviction was in 1961, Russo's most recent offense occurred in 2003, therefore, we apply the 1997 version of the statute, not the 1979 version.
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An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report . . . or developed or produced at a hearing . . . indicates by a preponderance of the evidence that the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole imposed . . . if released on parole at that time. In reaching such determination, the board panel or board shall state on the record the reasons therefor.
[N.J.S.A. 30:4-123.53(a).]
The presumptive FET for murder is twenty-seven months. N.J.A.C. 10A:71-3.21(a)(1). N.J.A.C. 10A:71-3.21(d), in turn, provides:
A three-member Board panel may establish a future parole eligibility date which differs from that required by the provisions of (a) or (b) and (c) above if the future parole eligibility date which would be established pursuant to such subsections is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior. In making the determination that the establishment of a future parole eligibility date pursuant to (a) or (b) and (c) above is clearly inappropriate, the three-member panel shall consider the factors enumerated in N.J.A.C. 10A:71-3.11.N.J.A.C. 10A:71-3.11 sets forth a list of twenty-three factors that guide the Board in making such determinations. As noted, the Board's discretionary power in rendering a release decision is broad, but not unlimited. Monks, supra, 58 N.J. at 242.
Russo argues the Board erred and should have released him because he has already served the entirety of his sentence. Russo further argues the denial of parole and setting a FET of thirty-four months was not supported by the record. These arguments are meritless.
Russo's contention that the Board erred in denying parole because he has maxed out of all his sentences and should therefore be released is without merit. Russo's belief that he has "maxed out" on all his sentences is based on a letter he received in 1987 from a parole counselor stating that his 1986 conviction and sentence of fifty years, with a twenty-year parole disqualifier, had begun. Ignoring the confusing and somewhat ambiguous nature of the letter, Russo's 50 year CDS sentence can never "max out" because it can never begin. The fifty-year sentence runs consecutive to his life-sentence. Therefore, the fifty year term can never actually begin. At most, the twenty-year parole disqualifier has been served. Thus, the Board did not err in not immediately releasing Russo.
In light of our limited review of Parole Board decisions, we do not find that Russo met his burden to set aside the Board's parole and FET decisions. In increasing the FET from the presumptive twenty-seven months to thirty-four months, as permitted by N.J.A.C. 10A:71-3.21(c), the Panel recognized the aggravating and mitigating factors in Russo's case, and the Board's decision is supported by adequate credible evidence in the record.
The remainder of Russo's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION