ALLEN KUNZ v. 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NOT FOR PUBLICATION WITHOUT THE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-3553-14T4

ALLEN KUNZ,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________

October 28, 2016

Submitted October 18, 2016 Decided

Before Judges Yannotti, Fasciale, and Gilson.

On appeal from the New Jersey State Parole Board.

Allen M. Kunz, 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

Allen Kunz appeals from a February 25, 2015 final agency decision of the New Jersey State Parole Board (Board) denying him parole and imposing a 144-month future eligibility term (FET). We affirm.

Kunz is an inmate at the New Jersey State Prison in Trenton and is serving a life sentence for murder, robbery, and possession of a weapon for an unlawful purpose. Kunz murdered a young woman with small children by stabbing her from behind at least five times. He stole her purse and later bragged about the killing to several people.

In January 2014, Kunz became eligible for parole after serving twenty-eight years and ten days of his sentence. In October 2013, a hearing officer conducted an initial hearing and then referred the matter to a two-member Board panel, which referred the case to the full Board. In March 2014, a thirteen-member panel held a full Board hearing and denied Kunz's application for parole. In April 2014, Kunz submitted a letter of mitigation to the Board. In May 2014, the full Board established a 144-month FET.

In October 2014, Kunz asked the Board to reconsider these decisions. The Board thoroughly considered the matter and issued a comprehensive written decision upholding the rulings to deny parole and impose the FET. The Board concluded that there was a substantial likelihood that Kunz would commit a crime if released, and that the FET was appropriate.

Kunz raises the following points on appeal

POINT I

THE BOARD IGNORED AND UNDERVALUED SUBSTANTIAL EVIDENCE AND RELIED ON THE SAME ERRONEOUS REASONING TO DENY APPELLANT PAROLE THAT WAS ARBITRARY AS IN THE CASE OF STATE V. TRANTINO.

POINT II

THE BOARD FAILED TO PROPERLY CONSIDER APPELLANT'S AGE AT THE TIME OF THE CRIME.

POINT III

THE PAROLE BOARD, IN ITS ATTEMPT TO SUPPORT THE DETERMINATION OF LIKELIHOOD, DID NOT APPLY PROPER LEGISLATIVE LAW, AND ASKED QUESTIONS THAT REFLECTED A CRIMINAL ACT BEYOND THE SCOPE OF THE JURY VERDICT.

POINT IV

THE PAROLE BOARD FAILED TO ASSESS APPELLANT'S SUITABILITY FOR PAROLE TO A RESIDENTIAL OR [MUTUAL AGREEMENT PROGRAM (MAP)].

POINT V

WRONG APPLICATION OF LEGISLATIVE LAW AND STANDARDS, LEAD TO

A. FLAWED SETTING OF APPELLANT'S FET.

B. FAILED TO PROPERLY CONSIDER MITIGATING FACTORS THAT ARE PART OF THE RECORD.

We have considered Kunz's contentions in light of the record and conclude that they are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons expressed by the Board in its February 25, 2015 final decision. We add the following brief comments.

Our review of administrative decisions by the Board is limited and "grounded in strong public policy concerns and practical realities." Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 200 (2001). "The decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables. . . .'" Id. at 201 (alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)). "To a greater degree than is the case with other administrative agencies, the Parole Board's decision-making function involves individualized discretionary appraisals." Trantino V, supra, 166 N.J. at 201. Consequently, we may reverse the Board's decision only if it is "arbitrary and capricious." Ibid.

We do not disturb the Board's factual findings if they "'could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)); see also In re Taylor, 158 N.J. 644, 657 (1999) (indicating that a court must uphold an agency's findings, even if "it would have reached a different result," so long as "sufficient credible evidence in the record" exists to support the agency's conclusions). The burden is on the challenging party to show that the Board's actions were "arbitrary, unreasonable or capricious. . . ." Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).

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, Kunz exhibiting insufficient problem resolution, committing institutional infractions, and having a prior opportunity on community supervision fail to deter criminal behavior.

We are satisfied that the imposition of a 144-month FET was supported by substantial credible evidence in the record. When departing from the presumptive 27-month FET, the Board needs to explain its decision and provide reasons. N.J.A.C. 10A:71-3.21(d). See also Monks v. N.J. State Parole Bd., 58 N.J. 238, 245 (1971) (citation omitted) (explaining that an explanation of the agency's reasoning is required because it is "[o]ne of the best procedural protections against arbitrary exercise of discretionary power. . ."). Here, the Board provided a sufficient explanation. 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, 92 S. Ct. 2593, 2602-05, 33 L. Ed. 2d 484, 497-99 (1972).

Affirmed.