DANIEL CARABALLO VS. NEW JERSEY STATE PAROLE BOARD(NEW JERSEY STATE PAROLE BOARD) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4451-15T1
DANIEL CARABALLO,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
Submitted June 7, 2017 – Decided June 28, 2017
Before Judges Simonelli and Carroll.
On appeal from the New Jersey State Parole
Board.
Daniel Caraballo, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Gregory R. Bueno, Deputy Attorney General, on
the brief).
PER CURIAM
Appellant Daniel Caraballo appeals from the March 23, 2016
final agency decision of the New Jersey State Parole Board (Board)
denying him parole and imposing a ninety-six month future
eligibility term (FET). We affirm.
In March 1985, a jury convicted appellant of murder,
aggravated assault, and two weapons offenses. On April 18, 1985,
appellant was sentenced to life imprisonment with an aggregate
thirty-year mandatory minimum period of parole ineligibility.
Appellant became eligible for parole on August 29, 2014.
However, a two-member panel of the Board denied him parole and
referred his matter to a three-member panel (panel) to establish
a FET. The panel determined a ninety-six-month FET was
appropriate.
In a comprehensive decision, the panel noted that: (1)
appellant has a prior criminal record, which includes convictions
for possession of stolen property and intent to commit robbery;
(2) the nature of appellant's criminal record was increasingly
more serious, and he was presently incarcerated for a multi-crime
conviction; (3) prior opportunities on community supervision and
previous incarceration failed to deter his criminal conduct; (4)
during his incarceration for the subject offenses, appellant
committed twenty-six disciplinary infractions, seven of which were
of the asterisk (serious) variety; (5) insufficient problem
resolution, including appellant's lack of insight into his
criminal behavior, minimizing his maladaptive behavior, and his
failure to sufficiently address his substance abuse problem; and
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(6) his risk assessment evaluation score of twenty nine, which
denotes a medium risk of recidivism.
After considering the applicable factors in N.J.A.C.
10A:71-3.11(b), the panel determined appellant remained a
substantial threat to public safety, essentially for the reasons
enumerated above. The panel further found that, pursuant to
N.J.A.C. 10A:71-3.21(d), a FET of ninety-six months was
appropriate given appellant’s lack of rehabilitative progress in
reducing the likelihood he would engage in criminal behavior if
released. The panel did observe the ninety-six month FET, which
commenced on August 29, 2014, will be reduced by any commutation,
work, or minimum custody credits appellant earns. Given the
credits appellant is currently earning, his projected parole
eligibility date is January 2019.
Appellant filed an appeal with the full Board. On March 23,
2016, the Board upheld the recommendation to deny parole and to
impose a ninety-six-month FET. This appeal ensued.
On appeal, appellant presents the following arguments for our
consideration:
POINT ONE
THE PAROLE BOARD DETERMINATION SHOULD BE
OVERTURNED BECAUSE THE RECORD DOES NOT SUPPORT
A FINDING THAT IF RELEASED, [] APPELLANT WOULD
COMMIT ANOTHER CRIME.
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POINT TWO
THE PANEL DECISION SHOULD BE REVERSED BECAUSE
THE BOARD CONSIDERED AS FACTORS FOR DENIAL,
OFFENSES WHICH HAD BEEN REDUCED IN TERMS OF
THEIR SEVERITY, AND THEREBY, ATTRIBUTED TO
THEM MORE WEIGHT THAN NECESSARY.
POINT THREE
THE FET IMPOSED IS EXCESSIVE AND SHOULD BE
REDUCED.
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)(D). We affirm substantially for the reasons
expressed in the Board's comprehensive written decision. We add
only the following brief comments.
We must accord considerable deference to the Board and its
expertise in parole matters. Our review of a Parole Board's
decision is limited. Hare v. N.J. State Parole Bd., 368 N.J.
Super. 175, 179 (App. Div.), certif. denied, 180 N.J. 452 (2004).
"'Parole Board decisions are highly individualized discretionary
appraisals,' and should only be reversed if found to be arbitrary
or capricious." Id. at 179-80 (citations omitted) (quoting
Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001)). We
"must determine whether the factual finding could reasonably have
been reached on sufficient credible evidence in the whole record."
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Id. at 179. In making this determination, we "may not substitute
[our] judgment for that of the agency, and an agency's exercise
of its statutorily-delegated responsibilities is accorded a strong
presumption of reasonableness." McGowan v. N.J. State Parole Bd.,
347 N.J. Super. 544, 563 (App. Div. 2002) (citation omitted).
Accordingly, "[t]he burden of showing that an action was arbitrary,
unreasonable or capricious rests upon the appellant." Ibid.An inmate serving a minimum term in excess of fourteen years
is ordinarily assigned a twenty-seven-month FET after a denial of
parole. See N.J.A.C. 10A:71-3.21(a)(1). However, in cases where
an ordinary FET is "clearly inappropriate due to the inmate's lack
of satisfactory progress in reducing the likelihood of future
criminal behavior[,]" the Board may impose a greater FET. N.J.A.C.
10A:71-3.21(d).
Here, we discern no basis to disturb the Board's decision.
The Board considered the relevant factors in N.J.A.C. 10A:71-3.11.
Its decision is supported by sufficient credible evidence in the
record and is entitled to our deference. We are satisfied the
imposition of a ninety-six-month FET was neither arbitrary,
capricious nor unreasonable. See McGowan, supra, 347 N.J. Super.
at 565 (affirming the imposition of a thirty-year FET based on
appellant's high likelihood of recidivism).
Affirmed.
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