HECTOR FERNANDEZ VS. NEW JERSEY STATE PAROLE BOARD (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NOT FOR PUBLICATION WITHOUT THE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-3369-17T1
HECTOR FERNANDEZ,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
____________________________
Submitted December 18, 2018 – Decided January 16, 2019
Before Judges Hoffman and Firko.
On appeal from the New Jersey State Parole Board.
Hector Fernandez, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Christopher C. Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Hector Fernandez appeals from a February 28, 2018 final
agency decision of the Parole Board (the Board) denying him parole and
imposing a twenty-four month future eligibility term (FET). He is serving a
term of life imprisonment for murder, unlawful possession of a weapon, robbery,
armed burglary, and theft. This was his sixth application for parole. We affirm.
I.
On September 8, 1980, appellant, his brother, and another male robbed a
liquor store and killed the victim by shooting him three times in the head.
Between September 3 and 10, 1980, appellant committed three other robberies
and a burglary. A stolen pistol was identified as the murder weapon and was
traced to appellant. He was arrested and charged with murder, two counts of
unlawful possession of a weapon, two counts of aggravated assault, burglary,
and theft. In April 1981, he pled guilty to murder, unlawful possession of a
weapon, four counts of robbery, armed burglary, and theft. He was sentenced
to an aggregate term of life imprisonment with a mandatory-minimum sentence
of twenty years.
In October 2017, a two-member Board panel denied parole and
established a twenty-four month FET. Appellant administratively appealed that
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decision and, on February 28, 2018, the full Board affirmed both the denial of
parole and the twenty-four month FET.
In his appeal to us, appellant contends:
POINT I
THE NEW JERSEY STATE PAROLE BOARD'S
DENIAL OF PAROLE WAS ARBITRARY AND
CAPRICIOUS, WHERE THE REASONS STATED
FOR DENIAL WERE INADEQUATE AND THE
DENIAL WAS NOT SUPPORTED BY CREDIBLE
EVIDENCE CONTAINED IN THE RECORD.
POINT II
THE BOARD PANEL FAILED TO DOCUMENT
THAT A PREPONDERANCE OF EVIDENCE
INDICATES THERE IS A SUBSTANTIAL
LIKELIHOOD THAT THE INMATE WILL
VIOLATE CONDITIONS OF PAROLE, AS
ESTABLISHED BY N.J.A.C. 10A:71-4.1(2).
POINT III
THE BOARD PANEL DENIED APPELLANT HIS
RIGHT TO PROCEDURAL DUE PROCESS DUE TO
THE BOARD PANEL'S VIOLATION OF WRITTEN
BOARD POLICY (Not Raised Below).
POINT IV
THE PAROLE BOARD UTILIZED SUBJECTIVE
PSYCHOLOGICAL TERMS SUCH AS LACK OF
INSIGHT, REMORSE, AND MINIMIZES CONDUCT
AS THE BASIS TO DENY PAROLE RENDERING
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THE DECISION UNCONSTITUTIOINAL ON
VAGUENESS GROUNDS.
POINT V
THE REPEATED USE OF THE SAME CRITERION
TO DENY PAROLE VIOLATES THE
CONSTITUTIONAL PRECEPTS OF DOUBLE
JEOPARDY (Not Raised Below).
In his letter reply brief, appellant further contends:
POINT I
THE BOARD PANEL FAILED TO ESTABLISH A
NEXUS BETWEEN THE REASONS FOR DENIAL
AND THE CONCLUSION THAT THERE EXISTED
A SUBSTANTIAL LIKELIHOOD THAT
APPELLANT WOULD COMMIT A NEW CRIME IF
RELEASED.
POINT II
THE BOARD PANEL DENIED HECTOR
FERNANDEZ HIS RIGHT TO PROCEDURAL DUE
PROCESS BY FAILING TO PROVIDE A BOARD
REPRESENTATIVE TO AID HERNANDEZ
THROUGHOUT HIS HEARINGS.
II.
We accord considerable deference to the Board and its expertise in parole
matters. Our standard of review is whether the Board's decision was arbitrary
and capricious. Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222-23 (2016).
Parole Board decisions are "highly 'individualized discretionary appraisals.'"
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Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth
v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). We will not disturb the
Board's fact-findings if they "could reasonably have been reached on sufficient
credible evidence in the whole record." Hare v. N.J. State Parole Bd., 368 N.J.
Super. 175, 179 (App. Div. 2004). "A reviewing court 'may not substitute its
own judgment for the agency's, even though the court might have reached a
different result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re
Carter, 191 N.J. 474, 483 (2007)). "This is particularly true when the issue under
review is directed to the agency's special 'expertise and superior knowledge of
a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
A Board decision to grant or deny parole for crimes committed before
August 1997 turns on whether there is a "substantial likelihood" the inmate will
commit another crime if released. N.J.S.A. 30:4-123.53(a) (1979); N.J.S.A.
30:4-123.56(c) (1979); Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7
(App. Div. 2000); N.J.A.C. 10A:71-3.10(a). The Board must consider the
enumerated factors in N.J.A.C. 10A:71-3.11(b)(1) to (23) in making its decision.
The Board, however, is not required to consider each and every factor; rather, it
should consider those applicable to each case. McGowan v. N.J. State Parole
Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).
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Having reviewed the record in light of these well-established standards,
we affirm the Board's denial of parole. Appellant's parole eligibility was
evaluated by the full Board in a written decision. The Board adopted the
determinations made by the two-member panel, which identified a number of
reasons for its decision, including: the facts and circumstances of the offenses;
appellant's prior criminal record; that he was serving time for multiple criminal
convictions; a prior opportunity on parole was revoked because of the
commission of new offenses; and prior opportunities on probation and parole
failed to deter criminal behavior and have been violated, terminated and
revoked. Saliently, the Board noted that appellant has "insufficient problem
resolution," that he "lack[s] insight" concerning his criminal behavior, and
continues to "minimize" his criminal conduct. The Board panel noted that
appellant "still does not know why he committed the criminal offen se of
[m]urder and doesn't understand the reason for his criminal behavior." Further,
during his incarceration, he committed forty-nine institutional disciplinary
infractions, fifteen being described as "serious."
All of these findings are relevant factors under N.J.A.C. 10A:71-3.11(b).
There is sufficient credible evidence in the record supporting these findings, and
we discern nothing arbitrary or capricious in the Board's decision to deny parole.
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We are unpersuaded by appellant's argument that the Board used subjective
psychological terms, rendering its decision unconstitutional. A review of the
full Board's determination makes clear that the Board appropriately consider ed
the confidential psychological report. Indeed, the Board duly found that
appellant produced "no evidence to support this claim and none exists in the
record." We agree.
There is also sufficient evidence to support the Board's conclusion that " a
preponderance of the evidence indicates that there is a substantial likelihood that
[appellant] would commit a crime if released on parole at this time." Lastly, we
are satisfied that the Board appropriately considered mitigating factors.
Affirmed.
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