WILFREDO CORTES VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5754-17T2
WILFREDO CORTES,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
____________________
Submitted October 29, 2019 – Decided November 18, 2019
Before Judges Yannotti and Firko.
On appeal from the New Jersey State Parole Board.
Wilfredo Cortes, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Suzanne Marie Davies, Deputy Attorney
General, on the brief).
PER CURIAM
Wilfredo Cortes appeals from a final determination of the New Jersey
State Parole Board, which denied his application for parole and established a
twenty-month future eligibility term (FET). We affirm.
On July 16, 2007, Cortes and three other assailants bound eleven
temporary residents at a home in Wildwood with duct tape and stole their
cellular phones, identification documents, and other valuables. One of the
assailants struck two of the victims with a handgun, resulting in physical
injuries. Cortes was identified as "Fred Nasty" by one of the victims. He was
arrested on July 19, 2007, and a grand jury thereafter charged him with three
counts of first-degree robbery, contrary to N.J.S.A. 2C:15-1 (counts one through
three); second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-
2 (count four); two counts of second-degree aggravated assault, contrary to
N.J.S.A. 2C:12-1B(2) (counts six and seven); and second-degree possession of
a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4A (count eight).
Pursuant to a plea agreement, Cortes was sentenced to eight years of
incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
with a five-year period of parole supervision.
After serving the mandatory minimum of his sentence, Cortes was granted
parole and released on December 23, 2014. In April 2017, Cortes's parole was
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revoked because he possessed or owned a firearm, and failed to refrain from
using controlled dangerous substances.
Cortes again became eligible for parole on April 11, 2018. On January
22, 2018, a two-member Board panel considered the application and issued a
notice of decision denying parole. The panel found that there was a reasonable
likelihood that Cortes would violate conditions of parole if he was released. In
its decision, the two-member panel noted as mitigating factors that Cortes: (1)
participated in programs specific to his behavior; (2) had a positive adjust ment
to the programs; and (3) achieved minimum custody status.
The panel identified the following aggravating factors as reasons for
denying his parole. The offenses for which Cortes is incarcerated are serious in
nature. He has an extensive and repetitive prior arrest record. Prior and current
opportunities on community supervision probation and parole have failed to
deter his criminal behavior. Previously he was incarcerated, but this did not
deter his criminal behavior. He has committed offenses while incarcerated. His
employment history is limited. In addition, he has insufficient problem
resolution, as shown by his lack of insight into his criminal behavior, and his
penchant for weapons.
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The two-member panel also found that Cortes had an extensive criminal
record for offenses that are assaultive in nature and for prior juvenile
adjudications dating back to 1995. While incarcerated, the panel noted Cortes
committed institutional infractions, two being serious in nature.
On March 29, 2018, Cortes appealed the panel's decision to the full Board.
The two-member panel amended its determination on June 20, 2018 to add
Cortes was "infraction free," that he "participat[ed] in institutional program(s)"
as mitigating factors, and revised "serious nature of offense" to "facts and
circumstances of offense" as a reason for denial. On July 25, 2018, after
considering the entire administrative record, the full Board issued a final
decision denying parole and establishing a twenty-month FET. This appeal
followed.
On appeal, Cortes argues that the Board erred by denying his application
for parole. He contends the Board's decision to deny him parole should be
vacated because there was insufficient credible evidence in the record to support
its determination and the FET established is harsh.
Appellate review of a decision of the Parole Board is "limited." Hare v.
N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004). We will not
reverse the Board's decision "unless found to be arbitrary . . . or an abuse of
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discretion." Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 366 (App.
Div. 2005) (alteration in original) (quoting Trantino v. N.J. State Parole Bd.,
154 N.J. 19, 25 (1998) (Trantino IV)). The Board has "broad but not unlimited
discretionary powers" when it considers an inmate's record and renders a
decision on a parole application. Trantino v. N.J. State Parole Bd., 166 N.J. 113,
173 (2001) (Trantino VI) (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238,
242 (1971)).
In reviewing a final decision of the Board, we consider: (1) whether the
Board's action is consistent with the applicable law; (2) whether there is
substantial credible evidence in the record as a whole to supports its findings;
and (3) whether in applying the law to the facts, the Board erroneously reached
a conclusion that could not have been reasonably reached based on the relevant
facts. Id. at 172 (quoting Trantino IV, 154 N.J. at 24).
Applying this standard, we see no basis to disturb the Board's decision.
The Board's determination to deny parole was not arbitrary and capricious.
Instead, the Board assessed all relevant factors, see N.J.A.C. 10A:71-3.11, and
arrived at a decision that is supported by ample evidence, including, but not
limited to, Cortes exhibiting insufficient problem resolution, committing
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institutional infractions, and having a prior opportunity on community
supervision failed to deter criminal behavior.
We are satisfied that the imposition of a twenty-month FET was not harsh
and was supported by substantial credible evidence in the record. When denying
parole, the Board must establish a date for future parole eligibility under
N.J.A.C. 10A:71-3.21. The Code requires that an inmate "serving a sentence
for . . . robbery . . . shall serve [twenty-three] additional months." N.J.A.C.
10A:71-3.21(a)(2). That mandate "may be increased or decreased by up to nine
months when, in the opinion of the Board panel, the severity of the crime for
which the inmate was denied parole and the prior criminal record or other
characteristics of the inmate warrant such adjustment." N.J.A.C. 10A:71-
3.21(c).
Here, the Board provided a sufficient explanation to determine the
presumptive twenty-three month term could be decreased to a twenty-month
term, which is favorable to Cortes. Finally, we are satisfied that the minimal
constitutional requirements of due process were fulfilled in this case. See
Morrissey v. Brewer, 408 U.S. 471, 485-89 (1972).
Affirmed.
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