NOT FOR PUBLICATION WITHOUT THE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-0369-19T1
HENRY SMITH,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
____________________
Submitted October 21, 2020 – Decided November 18, 2020
Before Judges Vernoia and Enright.
On appeal from the New Jersey State Parole Board.
Henry Smith, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Suzanne Marie Davies, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Henry Smith is a prison inmate serving a life sentence with a
mandatory minimum of twenty-five years of parole ineligibility. He appeals,
pro se, from the August 28, 2019 final agency decision of the New Jersey State
Parole Board (Board) denying his application for parole and imposing a one
hundred-month future eligibility term (FET). We affirm.
In 1989, appellant was found guilty of kidnapping and aggravated assault,
among other offenses, following a May 1988 incident where he grabbed a
fifteen-year-old girl, held her at knife point, and dragged her into his car.
Appellant threatened to kill his victim and punched her in the face several times
before she was able to escape. Appellant's criminal history also includes the
1975 murder of an eight-year-old girl.
In 2013, appellant first became eligible for parole for his 1988 offenses
and was denied. He was eligible for parole again in 2019, but a two-member
panel of the Board denied his parole request and referred the matter to a three-
member panel to establish an FET. The two-member panel found appellant
"does not seem to have any understanding of his violent, aggressive, [and]
sexual actions. He blames the victim, alcohol [and] rejection. He expresses
limited empathy [and] remorse for his victims."
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In April 2019, a three-member panel of the Board imposed a one-hundred-
month FET, expressing its rationale in a thorough written opinion. The panel
found the factors supporting denial of parole, collectively, were "of such a
serious nature" as to warrant the setting of a one-hundred-month FET, which the
panel deemed necessary to provide appellant with an opportunity to address the
multiple issues identified by the panel. The panel acknowledged appellant's
participation in institutional programming, but found his "lack of progress" in
understanding his behavior and his "failure to appreciate the severity of [his]
actions [was] reflective of an individual who requires further programming to
assist [him] in addressing these deficiencies." Appellant appealed these
decisions to the full Board, and the Board issued a final agency decision,
affirming the panels' parole denial and establishment of a one-hundred-month
FET.
Appellant presents the following contentions for our consideration:
POINT I
THE BOARD PANEL FAILED TO CONSIDER
MATERIAL INFORMATION RENDERING THE
DECISION AGAINST THE WEIGHT OF THE
EVIDENCE.
POINT II
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THE BOARD PANEL UTILIZED INCORRECT
STANDARDS IN RENDERING ITS DECISION TO
DENY PAROLE TO HENRY SMITH.
POINT III
THE BOARD PANEL SHIFTED THE BURDEN OF
PROOF TO MR. SMITH TO PROVE THAT HE IS
READY FOR PAROLE IN CONTRAVENTION TO
ESTABLISHED POLICY AND PROCEDURE, AS
WELL AS THE FUNDAMENTAL FAIRNESS THAT
SUCH POLICY AND PROCEDURE ARE DESIGNED
TO GUARANTEE.
POINT IV
THE PROCEEDINGS WAS NOT CONDUCTED IN
CONFORMITY WITH THE CODE OF
PROFESSIONAL CONDUCT.
POINT V
BECAUSE THE BOARD PANEL UTILIZED THE
SAME AGGRAVATING REASONS TO DENY
PAROLE AND ESTABLISH AN 100 MONTH
FUTURE ELIGIBILITY TERM A SECOND TIME AS
IT DID IN THEIR FIRST HEARINGS, THE
DECISION IS CONTRAVENE TO THE SPIRIT OF
N.J.S.A. 30:4-123.5-6, THE PRINCIPLES OF
DOUBLE COUNTING AND JEOPARDY,
FUNDAMENTAL FAIRNESS, 5TH AMENDMENT
DUE PROCESS, AND 8TH AMENDMENT
UNUSUAL PUNISHMENT.
We find insufficient merit in these arguments to warrant discussion in a
written opinion, Rule 2:11-3(e)(2), and add only the following few comments.
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Our standard of review is limited to evaluating whether the Parole Board
acted arbitrarily or abused its discretion. See In re Vey, 272 N.J. Super. 199,
205-06 (App. Div. 1993). Parole decisions are "individualized discretionary
appraisals." 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)). Those decisions,
moreover, are inherently subjective, and ultimately must be made by those with
experience and expertise in this field. See Puchalski v. N.J. State Parole Bd.,
104 N.J. Super. 294, 300 (App. Div. 1969) ("Such predictions as to future
behavior are necessarily quite subjective and leave the Board with a broad
discretion in the grant or denial of parole.") (citations omitted). While the Board
has broad discretionary power, such power is not unlimited and is "always
judicially reviewable for arbitrariness." Trantino, 166 N.J. at 173 (quoting
Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)).
As appellant committed his underlying offenses in 1988, the statute
governing parole in effect at the time of his offenses establishes a presumption
of parole that is overcome only if the Board finds "by a preponderance of the
evidence . . . there is a substantial likelihood that the inmate will commit a crime
under the laws of this State if released on parole at such time." N.J.S.A. 30:4 -
123.53(a) (1979), amended by L. 1997, c. 213 § 1; N.J.S.A. 30:4-123.56(c)
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(1979), amended by L. 1997, c. 213, § 2; see Trantino, 166 N.J. at 126
(explaining application of the 1979 Act). In making such a determination, the
Board must consider all pertinent factors, including those set forth in N.J.A.C.
10A:71-3.11(b).
Here, the Board's determination to deny parole and to impose a one-
hundred-month FET is well-supported by the evidence. The record reflects the
Board considered all relevant aggravating and mitigating circumstances.
Mitigating factors included that appellant was infraction free since his last panel,
had participated in programs specific to his behavior, and achieved minimum
custody status. Nevertheless, the Board also concluded appellant's "criminal
behavior is deeply rooted, as evidenced by [his] very extensive criminal record."
Further, the Board concurred with the determination of the Board panel that
"based on the aggregate of all relevant factors, there is a substantial likelihood
that [appellant] will commit another crime if released on parole." Additionally,
the Board concurred with the Board panel's determination that appellant
exhibited "insufficient problem resolution, . . . lack[ed] insight into [his]
criminal behavior, minimize[d] [his] conduct, and [his] substance abuse problem
has not been addressed."
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Regarding appellant's argument that the proceedings were not conducted
in conformity with the code of professional conduct, we disagree. The
proceeding was held in conformity with N.J.A.C. 10A:71-3.13(m), which allows
for proceedings to be conducted by videoconferencing. Moreover, the record is
devoid of evidence that appellant was unable to communicate effectively with
the Board panel, even if one panel member was not visible to him. As the full
Board noted, at no time did appellant or any other party lodge an objection based
on a communication problem.
Lastly, appellant argues the Board improperly relied on the same
aggravating reasons used to deny him parole at his first hearing. Again, we are
not persuaded. Board decisions are individualized determinations and are based
on the record presented to the Board. Trantino, 166 N.J. at 173. N.J.A.C.
10A71-3.11(b)(1) to (23) contains a non-exhaustive list of factors the Board may
consider in determining whether an inmate should be released on parole. Among
the pertinent factors are "[f]acts and circumstances of the offense," as well as
"[a]ggravating and mitigating factors surrounding the offense," "[s]tatements
by the inmate reflecting on the likelihood that he or she will commit another
crime; the failure to cooperate in his or her own rehabilitation; or the reasonable
expectation that he or she will violate conditions of parole[,]" as well as "any
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other factors deemed relevant[.]" N.J.A.C. 10A71-3.11(b)(5); (6); (17). "[T]he
Board [must] focus its attention squarely on the likelihood of recidivism. "
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002).
Accordingly, the Board was entitled to consider not only appellant's updated
information, but his personal and criminal history. We also are satisfied that the
same circumstances that led to the Board's denial of parole support its decision
to impose a one-hundred-month FET. In sum, we find nothing arbitrary or
capricious about the Board's decision because it is supported by sufficient
credible evidence in the record.
Affirmed.
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