Opinion
DOCKET NO. A-2383-11T2
02-12-2013
PEDRO BALBI, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Fusco & Macaluso, L.L.C., attorneys for appellant (Alfred V. Gellene, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, 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NOT FOR PUBLICATION WITHOUT THE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 Waugh and St. John.
On appeal from the New Jersey State Parole Board.
Fusco & Macaluso, L.L.C., attorneys for appellant (Alfred V. Gellene, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Appellant Pedro Balbi appeals the final administrative action of the New Jersey Parole Board (Parole Board), denying parole and setting a sixteen-month future eligibility term (FET). We affirm.
We discern the following facts and procedural history from the record on appeal.
Balbi is serving a twelve-year sentence, with a mandatory-minimum term of six years, following a guilty plea to being a leader of a narcotics-trafficking network, contrary to N.J.S.A. 2C:35-3.
Based upon his jail credits, Balbi became eligible for parole in November 2011. After one of the Parole Board's hearing officers referred the matter to a two-member panel of the Board, the panel considered his case in July 2011. It denied parole and established the sixteen-month FET. Balbi appealed to the full Board, which affirmed the decision in November 2011. This appeal followed.
Balbi argues that the Board's decision was not based upon substantial credible evidence in the record. Based upon the date of the offense, the Board applied the provisions of N.J.S.A. 30:4-123.53(a), which requires parole unless "by a preponderance of the evidence . . . there is a reasonable expectation that the inmate will violate the conditions of parole . . . if released on parole at that time."
Our standard of review of administrative decisions of the Parole Board is limited, and it is "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables . . . .'" Id. at 201 (quoting 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)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Ibid. Consequently, we may reverse the Parole Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)) (internal quotation marks omitted).
Having reviewed Balbi's arguments, the record on appeal, and the applicable law, we find no basis to reverse the Parole Board's decision denying parole. An extensive discussion is not required. R. 2:11-3(e)(1)(D), -3(e)(2). We add only the following.
The Parole Board's decision to deny parole was not arbitrary and capricious and was supported by sufficient credible evidence in the record, including Balbi's (1) record of institutional infractions, which were serious in nature and resulted in his being confined in administrative segregation, as well as loss of commutation time, and (2) insufficient problem resolution, lack of insight into his criminal behavior, and minimization of that conduct. The Board found that those considerations outweighed the mitigating factors, including Balbi's lack of a prior criminal record, participation in programs while incarcerated, and the restoration of commutation time. The Board also imposed a shorter FET than the standard twenty-three month FET established by N.J.A.C. 10A:71-3.21(a)(2), in recognition of Balbi's progress. The fact that Balbi may be deported due to an immigration court order does not warrant reversal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION