On appeal from a final decision of the State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and C.L. Miniman.
This is an appeal from the final administrative determination of the Parole Board, embodied in its letter of May 5, 2006, denying parole and establishing a 216-month future eligibility term ("FET"). The full Board concluded that appellant "would commit a crime if released on parole and that the reasons for denial of parole pursuant to N.J.A.C. 10A:71-3.11 were considered." The Board also concluded that specific and sufficient reasons were given by the three member panel for a FET outside the guidelines. Appellant contends that "the denial of parole and the imposition of an eighteen year future eligibility term are not supported by the whole record."
Appellant's sentence was imposed in July 1981. Appellant received a sentence of life imprisonment with twenty years to be served before parole eligibility for murder and a concurrent seven year sentence for a weapons offense. These crimes were committed while on bail for aggravated assault upon a tow truck driver who had impounded his car, and appellant received a concurrent sentence for that crime in November 1982.*fn1
While serving his sentence, appellant participated in an unlawful conspiracy to violate the drug laws, and in June 1994 was given a consecutive sentence of nine years, with four to be served before parole eligibility, for that charge.
Appellant relies on a report prepared in September 1999 by Dr. Alan M. Goldstein, a certified psychologist. Dr. Goldstein interviewed appellant for four and one-half hours, reviewed documents and records, and administered tests which reflected "a low risk of recidivism." Appellant was found to have developed a "considerable degree of insight" and "coping skills" to "control his impulsiveness," and to be "compassionate, caring and helpful." According to Dr. Goldstein, appellant's "need to please others and to avoid conflicts significantly reduces the likelihood of impulsive acting-out and/or recidivism." In sum, Dr. Goldstein concluded that because appellant "developed coping skills which are necessary to avoid the impulsiveness . . . his motivation to remain free and to establish a close relationship with family members and friends" was a factor which "will serve as a major controlling influence against the likelihood that he would act out aggressively or engage in criminal activities."
Dr. Goldstein also reviewed and relied on letters of support from family, friends and corrections officers. However, the report was prepared in 1999, after eighteen years of incarceration, in connection with a clemency petition, and was later presented to the hearing panel and Board during the parole process. There was reference in the Parole Board's decision to the fact it was advised that Dr. Goldstein was "in the process of preparing a supplemental evaluation," but the record reflects no such submission.*fn2
A report by Dr. Kevin Amory prepared six years later, in January 2005, was relied on by the Board.*fn3
It is true, as appellant asserts, that the Board did not expressly state why it gave more credence to Dr. Amory than Dr. Goldstein. However, six of appellant's twenty-seven institutional infractions occurred after Dr. Goldstein prepared his evaluation, and while none of those involved asterisk offenses, his institutional record could not be properly characterized, as reported by appellant to Dr. Goldstein, as involving "a small number of minor disciplinary charges."
As the murder occurred on October 16, 1980, and defendant was sentenced to life imprisonment on January 14, 1981, this case is governed by the parole law applicable to offenses which occurred between the effective date of the Code of Criminal Justice, on September 1, 1979, and the date on which the sentencing provision with respect to the crime of murder was amended, effective September 6, 1982. See Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.), certif. denied, 165 N.J. 523 (2000);*fn4 see also Trantino v. N.J. State Parole Board, 166 N.J. 113, 197, modified, 167 N.J. 619 (2001). By virtue of N.J.S.A. 2C:11-3 in effect at the time of defendant's offense, a judge could impose a sentence for the crime of murder of ten to thirty years, with up to fifty percent thereof to be served before parole eligibility, or thirty years with fifteen years to be served before parole eligibility. See N.J.S.A. 2C:11-3 (L. 1979, c. 178, § 21). Alternatively, the trial court had discretion to impose an extended sentence of life imprisonment under N.J.S.A. 2C:43-7, with or without a twenty-five year period of parole ineligibility. See State v. Maguire, 84 N.J. 508, 519-26 (1980); see also State v. Pennington, 154 N.J. 344, 353-60 (1998) (making clear that imposition of the twenty-five year period of parole ineligibility on a discretionary extended term of life imprisonment was not mandatory).
Appellant received a sentence of life imprisonment with a parole ineligibility term of twenty years.*fn5 Accordingly, under the Parole Act, appellant became "primarily eligible for parole after having served" the twenty year mandatory minimum term.
N.J.S.A. 30:4-123.51(b). See L. 1979, c. 441, § 7. The Parole Act of 1979 also provided for "presumptive parole." See N.J.S.A. 30:4-123.53(a); In re Application of Trantino, 89 N.J. 347, 355-56 (1982); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). Furthermore, the Act, as it relates to appellant serving a Title 2C sentence imposed at the time it was in this case, "place[d] the burden on the State '. . . to prove that the prisoner is a ...