Opinion
DOCKET NO. A-1734-12T3
04-29-2014
JOSEPH ZELINSKY, Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent.
Joseph Zelinsky, 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NOT FOR PUBLICATION WITHOUT THE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 Koblitz and O'Connor.
On appeal from New Jersey State Parole Board.
Joseph Zelinsky, 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
Joseph Zelinsky is serving two consecutive life sentences, plus an additional consecutive fifty-six to seventy-four years for two murders, kidnapping, four counts of robbery, three counts of armed robbery, four counts of conspiracy, three counts of entering with the intent to rob, assault with the intent to rob, atrocious assault and battery and two counts of larceny. He was convicted of charges in eleven indictments from 1969 to 1975. He appeals from a November 28, 2012 final agency decision of the New Jersey State Parole Board (Board) denying him parole and establishing a 120-month future parole eligibility term (FET). The only issue before us is whether the Board's decision to deny Zelinsky parole is supported by sufficient credible evidence. We affirm.
The Board noted that Zelinsky has an extensive criminal record beginning when he was a juvenile. As an adult he was convicted in New York and New Jersey of burglary-related crimes, narcotics charges and possession of a loaded gun. Zelinsky was incarcerated numerous times, was placed on probation four times and parole once. He violated probation twice and parole once. He committed the majority of the crimes for which he is currently incarcerated after he escaped from a New Jersey State Prison work release program in April 1974.
Zelinsky has committed seven institutional infractions, of which one was a serious, "asterisk" infraction. N.J.A.C. 10A:4-4.1. His most recent infraction occurred on December 7, 2000.
Zelinsky was initially denied parole on November 16, 2009 and a 240-month FET was established. He appealed and we granted the Board's motion for remand in light of the January 18, 2010 statutory amendments disallowing a FET of more than three years. N.J.S.A. 30:4-123.56(a) and (b); L. 2009, c. 330. Zelinsky's FET was then reduced to three years. These amendments were repealed effective May 9, 2011. L. 2011, c. 67.
Zelinsky became eligible for parole for the second time on September 18, 2011, after serving approximately thirty-five years and eight months of his sentence. In determining that there is a substantial likelihood that Zelinsky would commit a new crime if released on parole and, therefore, parole should be denied, the two-member Parole Board Panel (Panel) considered the following mitigating factors: Zelinsky has participated in institutional programs, including programs specific to behavior; has a favorable institutional adjustment, with his last disciplinary infraction occurring in December 2000, and has achieved minimum custody status (Gang Minimum).
The two-member Panel's reasons for denying parole included an extensive and increasingly more serious criminal record. They considered, as well, that Zelinsky was incarcerated for multi-crime convictions; his criminal behavior had not been deterred by prior probation, parole, or incarceration; he had committed institutional infractions; he committed an offense while on work release; and he lacked insight into his behavior, minimized his conduct and failed to adequately address a substance abuse problem.
The two-member Panel referred Zelinsky's case to a three-member Panel that established a 120-month FET. A two-member Panel establishes a FET upon denying parole to an inmate. N.J.A.C. 10A:71-3.21(a). For an inmate who is serving a sentence for murder, such as Zelinsky, the FET shall be twenty-seven months. N.J.A.C. 10A:71-3.21(a)(1). If the two-member Panel finds the twenty-seven-month FET to be inappropriate, it must refer the case to a three-member Panel. N.J.A.C. 10A:71-3.21(d)(1). The three-member Panel may establish a FET beyond twenty-seven months if the twenty-seven-month term is "clearly 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(e).
The three-member Panel based its decision on the same factors as the two-member Panel, with the addition of a letter of mitigation submitted by Zelinsky. The Board affirmed the three-member Panel decision to deny parole and establish a 120-month FET.
Zelinsky argues on appeal that the Board was constrained to consider against him only new negative information that developed since his last parole review. That is not accurate. Certainly, a parole board may not rely on select evidence that supports denying parole while ignoring other evidence in favor of releasing an inmate. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 190 (2001). The Board, however, considered both mitigating and aggravating evidence, focusing on Zelinsky's current likelihood to commit a new offense.
Zelinsky also alleges that the Board "changed" his risk assessment score because the recent score is more elevated than the prior score. The Board has no ability to change the score, which is measured by a mental health professional. Zelinsky also argues that the Board improperly characterized him as a "gangster." The Board instead indicated that Zelinsky continued to evidence a "gangster mentality," given the lack of remorse and placement of blame on others he demonstrated in his interview.
As measured on the standardized Level of Service Inventory-Revised (LSI-R) test used by the Department of Corrections.
Because Zelinsky's crimes were committed between 1969 and 1975, he was entitled to release on parole unless the Board determined by a preponderance of the evidence that there is "a substantial likelihood" that he would commit a crime if released on parole. Trantino, supra, 166 N.J. at 126; see N.J.S.A. 30:4- 123.53(a). The Board must consider all of the pertinent factors, including those set forth in N.J.A.C. 10A:71-3.11(b).
"Parole Board decisions are highly 'individualized discretionary appraisals.'" Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 41 (App. Div. 2003) (quoting Trantino, supra, 166 N.J. at 173). "Where the Board has applied the correct legal standard, a reviewing court is limited to determining whether the denial of parole was arbitrary, capricious or unreasonable." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). "Administrative actions, such as parole decisions, must be upheld where the findings could reasonably have been reached on the credible evidence in the record." Ibid.
Applying these principles to the facts in this case, we find no basis to disturb the Board's final decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION