A.O. v. NEW JERSEY STATE PAROLE BOARD

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-0121-17T1

A.O.,

          Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

     Respondent.
__________________________

                   Submitted December 5, 2018 – Decided January 30, 2019

                   Before Judges Ostrer and Mayer.

                   On appeal from the New Jersey State Parole Board.

                   A.O., appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Gregory R. Bueno, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Appellant A.O. appeals from the August 23, 2017, final agency decision

of the New Jersey State Parole Board (Board) denying him parole and imposing

an eighty-four-month future eligibility term (FET). We affirm the denial of

parole and the Board's rejection of the presumptive FET of twenty-seven

months, but we remand for reconsideration and a statement of reasons for

imposing the eighty-four-month FET.

      In 2007, a jury found A.O. guilty of two counts each of first-degree

aggravated sexual assault,  N.J.S.A. 2C:14-2(a); second-degree sexual assault,

 N.J.S.A. 2C:14-2(b); and third-degree endangering the welfare of a child,

 N.J.S.A. 2C:24-4(a), arising out of the assault of his nieces, A.L. and B.L. In

2004, A.L. disclosed that A.O. began sexually assaulting her when she was three

years old, and the latest incident occurred shortly before the disclosure, when

she was seven. B.L. reported that A.O. had molested her multiple times between

ages eight and eleven. Both girls alleged that A.O. performed oral sex on them

and engaged in other forms of sexual contact. In a recorded interview with the

police, A.O. allegedly confessed to sexually assaulting the girls numerous times

over several years.1   After his conviction, the court sentenced A.O. to an



1
  The statement is not included in the record, so we are unable to confirm its
contents.
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aggregate thirty-year prison term with a ten-year parole bar, and parole

supervision for life. Defendant was then fifty-five years old.

      A.O. became eligible for parole on November 13, 2016. A two-member

panel of the Board denied A.O. parole and referred him to a three-member panel

to set an FET longer than the default term of twenty-seven months. See N.J.A.C.

10A:71-3.21(a), (d). In support of its decision to deny parole, the panel cited

the "circumstances" and "nature of [the] offense(s)," and his "insufficient

problem resolution." The panel noted that A.O.

            denies sexually abusing victims. Only after being
            pressed for 50 minutes at the end admitted molesting
            his victims – doesn't understand his own actions or how
            those actions impacted the victims and their family.
            Refers to crime as opportunistic and blames victims. –
            The objective of the crime was to "gain control." Has
            not addressed issues as to his conduct and criminal
            thinking – 10 years incarceration – no closer to
            understanding his criminal motivation.

      The panel also noted as mitigating factors A.O.'s infraction-free stint in

prison; participation in institutional programs and programs "specific to" his

behavior; lack of prior criminal record; and "favorable institutional adjustment."

The panel also noted A.O. had a risk assessment score of 5. Although this

represents a comparatively "low risk of recidivism," the pre-parole evaluation




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noted that inmates scoring 5 posed a twenty percent chance of re-arrest and a

13.3 percent chance of reconviction within two years of release.

      The three-member panel reviewed A.O.'s case in December 2016. See

N.J.A.C. 10A:71-3.21(d)(1)-(2). The panel imposed an FET of eighty-four

months. As a result, his next parole eligibility date would be November 13,

2023. He would then be seventy-two years old.

      In justifying an FET longer than the presumed twenty-seven-month

period, the three-member panel cited the same general grounds for denying

parole: the circumstances of the offenses, and A.O.'s "insufficient problem

resolution." As for the latter, the panel reviewed in detail A.O.'s responses at

his hearing. In sum, A.O. denied that he performed cunnilingus on his nieces.

He maintained that he might have accidentally touched their genitalia while

roughhousing or in assisting them to go to the bathroom. However, the panel

reported that A.O. admitted that his actions were "immoral," and that he said he

would go to counseling and "do what you need me to do" and admitted he "had

a problem."

      As for its reasons to impose an eighty-four-month FET, the panel

acknowledged that it was authorized to deviate from the presumptive schedule

if it is "clearly inappropriate due to the inmate's lack of satisfactory progress in


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reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d).

In reaching that conclusion, the panel relied on the same factors supporting the

denial of parole. The panel concluded "that an 84 month future eligibility term

. . . is necessary in order to address the issues detailed." These included his

failure to understand "the motivations or triggers to [his] sexually based

offenses," which was particularly "troubling" inasmuch as he had attended

several programs designed to provide such insight. The panel also cited his

continued denial of guilt.

      A.O. appealed the decision to the entire Board. He again denied to the

Board that he had sexually assaulted either girl. A.O. challenged a three -year-

old's ability to distinguish between sexual and non-sexual touching; questioned

the veracity of the pre-sentence investigation report (PSI) recounting the girls'

version of events; and asserted that much of his original confession was

"sarcastic" due to his incredulity that the police would misinterpret his

"innocent" conduct.

      While A.O. agreed that he used poor judgment in touching his nieces, he

denied touching them in the context of "performing a sexual act." He only

expressed remorse for wrestling with them roughly, a result of which his hand

"may have been in what the police call an inappropriate place." Besides denying


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culpability of sexual assault and attempting to explain his earlier incriminating

statements, A.O. also argued the Board could not demonstrate a "substantial

likelihood" that he would commit a crime or violate a condition of parole.

      The Board affirmed the denial of parole and the eighty-four-month FET,

noting that: (1) the panel properly assumed the reliability both of A.O.'s PSI and

the Judgment of Conviction; (2) A.O.'s statements to the panels reflected a lack

of insight into his crime and a tendency to minimize and even deny his sexual

conduct; and (3) A.O.'s inability to recognize the consequences of his actions

obstructed his path towards rehabilitation. Regarding the decision to deny

parole, the Board noted that likelihood to commit a crime if released was not the

standard; rather, it was whether "a reasonable expectation exist[ed] that [he

would] violate conditions of parole if released on parole."            Specifically

regarding the FET, the Board affirmed the panel's finding that the presumptive

term was "clearly inappropriate due to [his] lack of progress in reducing the

likelihood of future criminal behavior." The Board stated:

            The Board concurs with the three-member Board panel
            that during your ten (10) years of incarceration, you
            present as not understanding the motivations or triggers
            to your sexually based offenses and that you deny key
            aspects of your sexually based offenses. Furthermore,
            the Board concurs with the three-member Board panel's
            decision to establish an eighty-four (84) month future
            eligibility term . . . .

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      This appeal followed. A.O. contends, in his sole point on appeal, "THE

REASONS FOR DENIAL WERE INSUFFICENT TO REJECT PAROLE

RELEASE."

      We have considered this contention in light of the record and applicable

legal principles and conclude that A.O.'s challenge to the parole denial lacks

sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).

We affirm substantially for the reasons expressed in the Board's written

decision. However, we are not satisfied that the Board has adequately justified

its decision to impose an eighty-four-month FET.

      We owe considerable deference to the Board's decisions, which we

recognize are "highly individualized discretionary appraisals," in view of its

expertise in parole matters. Hare v. N.J. State Parole Bd.,  368 N.J. Super. 175,

179 (App. Div. 2004) (quoting Trantino v. N.J. State Parole Bd.,  166 N.J. 113,

173 (2001)). Our review is limited to whether the decision was "arbitrary or

capricious," and A.O. bears the burden of this showing. Id. at 180; McGowan

v. N.J. State Parole Bd.,  347 N.J. Super. 544, 563 (App. Div. 2002). Therefore,

we need only "determine whether the factual finding could reasonably have been

reached on sufficient credible evidence in the whole record." Hare, 368 N.J.




                                                                        A-0121-17T1
                                        7 Super. at 179. In making this determination, we "may not substitute [our]

judgment for that of the agency." McGowan,  347 N.J. Super. at 563.

      An inmate serving a minimum term over fourteen years is ordinarily

assigned a twenty-seven-month FET after a denial of parole. N.J.A.C. 10A:71-

3.21(a)(1). A Board panel may increase that period by nine months where "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). 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). If it finds unsatisfactory progress, the panel refers

the case to a third member to review the hearing record. The three-member

panel shall then establish a FET that differs from the presumptive FET. N.J.A.C.

10A:71-3.21(d).2 In doing so, the panel considers "the factors enumerated in

N.J.A.C. 10A:71-3.11," which are the same factors considered in determining




2
  If the three members are not unanimous, then the issue is referred to the Board
for decision. N.J.A.C. 10A:71-3.21(d)(5).



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whether to grant parole. 3 However, a panel need only consider those factors it

finds apply in a given case. McGowan,  347 N.J. Super. at 561. The panel should

focus principally "on the likelihood of recidivism." Id. at 565.



3
  The non-exclusive list of twenty-three factors, set forth in N.J.A.C. 10A:71-
3.11(b), consists of the following:

            1. Commission of an offense while incarcerated.
            2. Commission of serious disciplinary infractions.
            3. Nature and pattern of previous convictions.
            4. Adjustment to previous probation, parole and
            incarceration.
            5. Facts and circumstances of the offense.
            6. Aggravating and mitigating factors surrounding the
            offense.
            7. Pattern of less serious disciplinary infractions.
            8. Participation in institutional programs which could
            have led to the improvement of problems diagnosed at
            admission or during incarceration. This includes, but is
            not limited to, participation in substance abuse
            programs, academic or vocational education programs,
            work assignments that provide on-the-job training and
            individual or group counseling.
            9. Statements by institutional staff, with supporting
            documentation, that the inmate is likely to commit a
            crime if released; that the inmate has failed to cooperate
            in his or her own rehabilitation; or that there is a
            reasonable expectation that the inmate will violate
            conditions of parole.
            10. Documented pattern or relationships with
            institutional staff or inmates.
            11. Documented changes in attitude toward self or
            others.


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      In denying parole, the panel and the Board highlighted that the likelihood

of reoffending was no longer the standard. Instead, the panel denied parole

because it found a "reasonable expectation" that A.O. would "violate conditions

of parole if released on parole." We discern no basis to disturb the Board's




            12. Documentation reflecting personal goals, personal
            strengths or motivation for law-abiding behavior.
            13. Mental and emotional health.
            14. Parole plans and the investigation thereof.
            15. Status of family or marital relationships at the time
            of eligibility.
            16. Availability of community resources or support
            services for inmates who have a demonstrated need for
            same.
            17. Statements 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.
            18. History of employment, education and military
            service.
            19. Family and marital history.
            20. Statement by the court reflecting the reasons for
            the sentence imposed.
            21. Statements or evidence presented by the
            appropriate prosecutor's office, the Office of the
            Attorney General, or any other criminal justice agency.
            22. Statement or testimony of any victim or the nearest
            relative(s) of a murder/manslaughter victim.
            23. The results of the objective risk assessment
            instrument.



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decision to deny parole. The Board considered the relevant factors in N.J.A.C.

10A:71-3.11(b) and its decision is supported by sufficient credible evidence in

the record. In particular, the Board relied on A.O.'s denial of his offense and his

lack of insight into his criminal behavior. We defer to the Board's determination

that A.O.'s denial and lack of insight signaled a reasonable likelihood he would

violate conditions of parole.  N.J.S.A. 30:4-123.53(a).

      We also defer to the Board's determination that the presumptive twenty-

seven-month FET was not warranted, based on its determination that A.O. had

not made "satisfactory progress in reducing the likelihood of future criminal

behavior." N.J.A.C. 10A:71-3.21(d). As the Board noted, A.O.'s completion of

educational classes, his infraction-free institutional record, and other mitigating

factors did not outweigh his denial of criminal behavior and his failure to come

to terms with the impulses that led him to it.4 The Board reasonably weighed

the fact that A.O. had been incarcerated almost ten years and participated in

many programs yet had failed to gain insight into, or take responsibility for, his

crimes.


4
  We recognize that A.O. has an offer of employment and the support of friends
and family, expressed in numerous letters. However, A.O. was employed and
may have enjoyed that support when he committed the offenses. The authors of
letters in support of A.O. demonstrate a striking neutrality regarding A.O.'s
guilt.
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      However, while the Board may have reasonably concluded that A.O.'s

incorrigibility over ten years suggested he would gain little insight in just

twenty-seven months, the Board failed to articulate a reason for extending the

FET over three times that.

      We require an explanation of the agency's reasoning because it is "[o]ne

of the best procedural protections against arbitrary exercise of discretionary

power." Monks v. N.J. State Parole Bd.,  58 N.J. 238, 245 (1971) (quoting Davis,

Administrative Law § 16.12, at 585 (1970 Supp.)). Absent a statement of

reasons, we cannot ascertain whether the Board's decision is justified or arbitrary

and capricious. See Mejia v. N.J. Dep't of Corr.¸ 446 N.J. Super. 369, 378-79

(App. Div. 2016) (reversing and remanding penalty for institutional infraction

for failure to provide reasons for particular sanction); Balagun v. N.J. Dep't of

Corr.,  361 N.J. Super. 199, 203 (App. Div. 2003) (requiring agency to "disclose

its reasons for any decision, even those based upon expertise, so that a proper,

searching, and careful review by this court may be undertaken"). For example,

the Board gave no weight to the impact the parole denial itself, or A.O.'s

declining years, could have in spurring A.O. to view his conduct in a new light.

As the Board failed to articulate a rational explanation for extending the FET




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almost five years beyond the presumptive term, we remand to the Board to

reconsider the length of the FET and to provide reasons for the term imposed.

      Affirmed in part; remanded for reconsideration in part. We do not retain

jurisdiction.




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