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

NOT FOR PUBLICATION WITHOUT THE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

2 A-4451-15T1
(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.

3 A-4451-15T1
 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."

4 A-4451-15T1
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.

5 A-4451-15T1