March 11, 2008
GREGORY COSCIA, PETITIONER-APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT-RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 7, 2008
Before Judges Parrillo and S.L. Reisner.
Gregory Coscia appeals from an August 18, 2006 final decision of the Parole Board denying Coscia's application for parole and setting a 144-month future eligibility term (FET). We remand this matter to the Parole Board for reconsideration.
Coscia was convicted of a murder that he committed on January 3, 1981. He stabbed the victim, Deborah Freedman, multiple times including inserting a knife into her vagina. On October 9, 1981, he was sentenced to life in prison with twenty-five years of parole ineligibility. This appeal arises from his first parole hearing after he had served twenty-five years in prison.
At the parole hearing, it was apparent that Coscia had undergone years of therapy while incarcerated. He mentioned to the Adult Panel that he had "twelve or thirteen years of therapy." However, in denying his application for parole and setting a 144-month FET, when the ordinary FET for an inmate convicted of murder is twenty-seven months, N.J.A.C. 10A:71-3.21(a)1, the Adult Panel did not consider any of Coscia's psychiatric treatment records. Nor did the Board consider those records.
In deciding whether to grant Coscia parole, the Board was obligated to consider the pre-1997 statutory standard, which was whether there was a "substantial likelihood that the inmate will commit a crime under the law of this State if released on parole." Trantino v. N.J. State Parole Bd., 154 N.J. 19, 31 (1998). Before reaching a decision, the Adult Panel and the Board were required to consider all relevant and reliable information about the inmate. N.J.S.A. 30:4-123.55c. However, despite the fact that Coscia advised the Adult Panel of his history of psychiatric treatment while in prison, the Panel only considered two psychiatric reports from 1981, prepared for purposes of Coscia's trial, and a 2005 report from Dr. Gomberg, who examined Coscia once for purposes of informing the parole decision. The Panel did not consider the records of any other psychological evaluations during Coscia's lengthy imprisonment. Thus, the Panel did not have a full picture of the inmate's psychological condition and the extent of his rehabilitation.
In N.J. State Parole Board v. Cestari, 224 N.J. Super. 534 (App. Div.), certif. denied, 111 N.J. 649 (1998), we considered a similar situation in which the Board did not consider all of the inmate's psychological records before making a decision:
It appears from the record that the Adult Panel committed further procedural error by not considering all available psychiatric and psychological reports regarding Cestari. N.J.S.A. 30:4-123.55c obligates a Board panel at a parole hearing to ". . . receive as evidence any relevant and reliable documents." Cestari advised the Panel that he had attended four sessions at the Mount Carmel Guild in Newark, where he had been evaluated by the heads of the psychiatry and psychology departments, and that he understood those evaluations were favorable. The Panel's response to Cestari was that they had no reports from the mental health professionals at the Mount Carmel Guild. However, the record does not indicate that the Panel made any effort to obtain those reports or that it considered Cestari's representation that those reports had been favorable.
We conclude that the Adult Panel should have obtained the written reports prepared at the Mount Carmel Guild. Cestari was referred to the Mount Carmel Guild while an inmate in the New Jersey correctional system. Therefore, the reports prepared at that facility were undoubtedly available to correction officials and should have been placed in his parole file. Furthermore, when the members of the Panel were advised that those reports were not in the parole file, they should have obtained them. It is evident from the Panel's decision that they were heavily influenced by Dr. Rotgers' adverse psychological evaluation of Cestari.
In our view, a full review of the favorable evaluations of Cestari by other mental health professionals was required in order for the Panel to make a balanced and fair evaluation of Cestari's entitlement to release on parole. [Id. at 544-45.]
We acknowledged the limited scope of our review of the Board's decisions:
A denial of parole is subject to judicial review for arbitrariness. The question whether there is a substantial likelihood an inmate will commit another crime if released, although predictive of future conduct rather than a finding as to past conduct, is essentially factual in nature. Therefore, a reviewing court must determine whether this factual finding could reasonably have been reached on sufficient credible evidence in the whole record. Under this standard, the agency's decision will be set aside "if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made." "This sense of 'wrongness' arises in several ways, among which are the lack of inherently credible supporting evidence, the obvious overlooking or underevaluation of crucial evidence or a clearly unjust result." [Id. at 547 (citations omitted)(emphasis added).]
However, in Cestari, we could not defer to the Board's decision, because it had not considered all of the relevant evidence. The missing reports were eventually made available and, upon reviewing them we concluded that, in conjunction with other favorable information, those reports justified Cestari's release. Id. at 551.
Unlike Cestari, in Coscia's case the missing reports have never been made available to the Panel, the Board or Coscia's counsel. In response to our inquiry at oral argument, the Deputy Attorney General provided us with a certification from Dr. Herbert Kaldany, the Director of Psychiatry of the Department of Corrections, attesting that there are at least nine additional psychiatric and psychological reports concerning Coscia spanning the time period 1991 to 2006. The Panel's and the Board's decisions were largely based on a conclusion that Coscia lacked insight into his offense and in particular the sexualized aspect of the attack on the victim and his apparent underlying rage toward women.*fn1 They also concluded that he showed no empathy for the victim, minimized his criminal behavior and minimized the seriousness of his drug and alcohol problems.*fn2 However, those entities did not have a full picture of the inmate because they did not have all of the relevant information about him.
This gap is particularly troubling because the Board also set a FET more than four times longer than the ordinary term. See N.J.A.C. 10A:71-3.21(a)1. The Board may increase the FET "if the future parole eligibility date which would be established pursuant to [subsection (a)1] is clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d). In considering the inmate's progress, the Board is to consider the multiple factors set forth at N.J.A.C. 10A:71-3.11, including the inmate's mental and emotional health.
As we indicated in Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179-80 (App. Div.), certif. denied, 180 N.J. 452 (2004), we will defer to the Board's FET decision so long as it is not arbitrary and capricious and it is supported by substantial credible evidence. However, in Hare, the Board considered "multiple psychological evaluations of defendant some portions of which, particularly those more recent, are not favorable to defendant." Id. at 180. By contrast, in this case, the Board did not have before it the full record of Coscia's psychological evaluations. Therefore, it did not fairly assess the inmate's mental and emotional health.
While we do not minimize the heinous nature of Coscia's offense, and we imply no view as to whether he should be released on parole, we do conclude that his hearing was not fair because the Panel and Board did not consider all of the relevant evidence. Further, without considering Coscia's past history of therapy and his past psychological evaluations, the Board could not properly decide the appropriate length of the FET. A FET, after all, is not a guarantee of release; it is only an opportunity to be considered for parole. Setting a 144-month FET is a fairly drastic step, particularly since the normal FET for an inmate convicted of murder is twenty-seven months.
For all of these reasons, we conclude that this matter must be remanded to the Board for a new hearing before the Adult Panel. Prior to the hearing, the Panel must be provided with and shall consider all of the materials listed in Dr. Kaldany's certification. Once the Panel has been provided with all of the materials, Coscia shall be given a new Panel hearing and the Panel (and then the Board) shall make a decision, de novo, on the issue of parole and, if parole is denied, on the appropriate FET. We do not retain jurisdiction.