On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Sapp-Peterson and Alvarez.
Appellants, Joseph T. Lepore and Sean M. Ryan, appeal from decisions of the New Jersey State Parole Board (Board) denying them parole.*fn1 Appellants' convictions arose out of a fire in a dormitory at Seton Hall University on January 19, 2000 that resulted in the deaths of three students and injuries to many others. Appellants started the fire. They pled guilty to third-degree arson by recklessly placing another person in danger of death or bodily injury, N.J.S.A. 2C:17-1b(1). Appellants also pled guilty to third-degree witness tampering, N.J.S.A. 2C:28-5a, based upon their conduct two days after the fire. Lepore also pled guilty to disorderly persons resisting arrest, N.J.S.A. 2C:29-2a(1), for his conduct on June 11, 2003.
Pursuant to a plea agreement, appellants were sentenced to five years imprisonment with a sixteen-month parole disqualifier for arson and a concurrent five-year term for witness tampering. Lepore also received a concurrent six-month term for resisting arrest.
Appellants were sentenced on January 26, 2007. Lepore first became eligible on May 19, 2008, and Ryan first became eligible on May 12, 2008.*fn2 After extensive administrative proceedings, the Board issued final decisions in both cases on August 6, 2008, denying parole and establishing for Ryan an eleven-month future eligibility term (FET) and for Lepore an eighteen-month FET. These appeals followed.*fn3
Appellants argue that the Board's decisions are not supported by substantial credible evidence in the record and that the decisions were arbitrary and capricious. Based upon our careful review of the record and our consideration of the controlling legal principles, we are satisfied there was sufficient credible evidence in each case to support the Board's decision. We therefore affirm.
Appellants were friends from childhood, and in the 1999-2000 school year, they were roommates in Boland Hall, a freshman dormitory at Seton Hall University. Appellants' room was part of a four-person suite that shared a common bathroom between the two rooms on the third floor. On the night of January 18, 2000, and into the early morning hours of January 19, two individuals, Tino and Mike, who were friends of appellants but were not residents at Seton Hall were at Boland Hall socializing with appellants. The fire started at about 4:30 a.m. on January 19. The subsequent investigation revealed these pertinent events leading up to the fire.
Between 12:30 and 1:00 a.m., appellants were seen in a second floor room with a group of people who were playing cards and drinking beer. After that, Ryan and possibly Lepore were part of a group of people who gathered in a third-floor suite of a female resident, where beer and vodka were being consumed. Sometime after 2:00 a.m., appellants and others were in a common lounge area on the third floor. Ryan ripped from the wall a banner made of construction paper, leaving it partially attached to the wall and partially draped over a couch that was located against the wall.
At about 3:30 a.m., appellants' suitemate, G.S., heard Ryan and two other men talking and laughing loudly in the common bathroom of their suite. G.S. heard a number of people going in and out of the suite and toward the common lounge. At about 3:45 a.m., Tino and Mike left Boland Hall.
In the subsequent investigation, Lepore acknowledged that he drank two or three beers during the evening, but denied being intoxicated. According to Ryan's presentence report, he drank to intoxication before the fire was started.
At about 4:30 a.m., appellants were in the third-floor common lounge. They decided they would ignite the banner that Ryan had partially torn from the wall, for the purpose of setting off the fire alarms, which would require all occupants of Boland Hall to evacuate the building and have to go outside in the twenty-degree cold. Ryan lit a match, which he passed to Lepore, who passed it back to Ryan. Ryan "flicked" the match onto the banner, causing it to catch fire. As the banner was smoldering, appellants left it unattended and returned to their room, about thirty feet down the hallway from the lounge and around a corner. Soon after, the smoke alarm activated. Appellants came out of their room and saw the hallway filled with heavy smoke. The resident assistant was yelling for people to wake up and get out of the building. Appellants knocked on a few doors urging people to get out. Appellants left the building.
Three of the building's occupants were killed in the fire. One was a suitemate of appellants, who died from smoke inhalation. Two others died of smoke inhalation and thermal injuries. About fifty residents were injured. At least four suffered serious injuries.
Investigators preliminarily concluded that the fire originated on the couch against the wall, and then spread to two other couches in the lounge. The investigation revealed the presence of the banner made of construction paper that had been pulled from the wall onto the couch by another student, later identified as Ryan, shortly before the fire. The investigation also revealed that the fire was incendiary, meaning it was purposely set by someone applying direct open flame combustibles to the couch. Detectives interviewed all third-floor residents of the North Wing of Boland Hall, but were unable to ascertain who was in the lounge when the fire started. Investigators were, however, able to piece together appellants' whereabouts in the hours leading up to the fire, as we have previously described.
Two days after the fire, on January 21, 2000, appellants and Tino met with Mike at a Dunkin' Donuts in Madison. Mike apparently knew that Ryan had ripped the banner from the wall the night of the fire. Appellants asked Mike to tell investigators, if asked, that he did not know who ripped the banner down.
The investigation in the aftermath of the fire was very lengthy. Charges were not filed against appellants until June 2003. One indictment charged appellants with three counts of felony murder, three counts of reckless manslaughter, third-degree arson, more than fifty counts of second-degree aggravated assault, and other related charges. A separate indictment charged appellants with third-degree witness tampering and related charges based upon their efforts to induce Mike to lie to investigators about the banner. Ryan was arrested uneventfully. However, the events involved in Lepore's arrest resulted in additional charges against him.
On June 11, 2003, Lieutenant Dennis Masucci of the Essex County Prosecutor's Office pulled his unmarked police vehicle behind Lepore's vehicle with the intention of arresting him. Lepore turned from Passaic Avenue onto Sun Valley Way in Florham Park. Masucci activated his siren and lights as they drove down Sun Valley Way. Lepore pulled into the rear parking lot of an apartment complex, where his vehicle and Masucci's came to a stop. As Masucci got out of his vehicle, Lepore abruptly backed into Masucci's vehicle, and as Masucci jumped back into his vehicle, he allegedly sustained injuries. Additional units arrived and Lepore was arrested. Lepore later claimed he did not initially know Masucci's car was a police vehicle and he threw his car into reverse when he was startled by Masucci turning on the police siren after the two cars had stopped.
Lepore was indicted for several offenses arising out of this incident, including second-degree eluding, second-degree aggravated assault, and third-degree aggravated assault. However, pursuant to the plea agreement, he later pled guilty to only disorderly persons resisting arrest.
We now describe the parole proceedings with respect to each appellant.
Ryan's initial hearing was conducted on March 11, 2008. The hearing officer referred his case to an Adult Panel (Panel), noting the following reasons: Serious nature of offense (arson); Presently incarcerated for multi crime conviction; Insufficient program participation (specifically Focus on the Victim, Substance Abuse); Unfavorable interview (minimizes conduct); and Factors and circumstances of the offense (three deaths, fifty injured).
On March 31, 2008, a two-member Panel conducted a hearing. The transcript consumes 134 pages. At the conclusion of Ryan's interview, the two Panel members deliberated, after which one of them made these comments on the record.
All right, Mr. Ryan. Needless to say, I mean I don't even need to tell you. It's a difficult case especially, you know, you have no prior record.
And we were impressed with your testimony, to be very honest with you, and -- and your behavior and where you -- where you've gotten yourself to.
We don't know where you were then, you know? We don't know, like you say, if you were so bad or you, whatever. I mean I can't make anything of those statements, to be honest with you. Obviously, you're -- I think you're different today than you were then, which is good.
We are, unfortunately, going to deny parole. And really, while we believe you have made progress, and I want to make this very clear to you. We both really are in agreement that you've made a lot of progress. We just think that Focus on the Victim will help but even more than that, I mean they do have some counseling, some counselors available. You need to talk to one. You need to share -- maybe with a priest or -- or whatever religious, you know, format you want to follow, to understand, you know, your criminal actions, understand truly emotionally what it means to you and to others and to really understand what happened. And that's really kind of our bottom line.
We're giving you an 11-month hit. It's the minimum we can go. Presumptive is 20.
We can go 9 above or 9 below. We went 11.
In the written Panel decision issued on that date, using the standard check-off form, the Panel stated its decision, namely denial of parole with an eleven-month FET, and stated the reason, namely that "[t]he Panel has determined there is a reasonable expectation that you will violate conditions of parole if released on parole." The Panel checked off the following mitigating factors: No prior criminal record; Infraction free; Participation in program(s) specific to behavior; Participation in institutional program(s); Average to above average institutional report(s); Attempt made to enroll and participate in program(s) but was not admitted; and Minimum custody status achieved/maintained. The reasons checked off for denial of parole were: Presently incarcerated for multi crime conviction; and Insufficient problem(s) resolution -- Specifically: "Inmate is in the beginning stages of understanding how his criminal actions impact others, however needs more help to understand empathy," as demonstrated by the Panel interview and Documentation in case file. The Panel suggested completion of the Focus on the Victim program and "any other programs to gain insight into your criminal decision-making."
On May 9, 2008, Ryan appealed to the full Board. In support of his appeal, his attorney submitted a letter arguing that the Panel failed to consider certain material facts and failed to document that a preponderance of the evidence indicated a reasonable expectation that Ryan would violate the conditions of parole. In particular, he argued that the Panel failed to consider or give appropriate weight to the following facts: Ryan pled guilty only to third-degree arson, not the more serious charges, including felony murder, aggravated manslaughter or aggravated assault; the sentencing judge found that Ryan's conduct was the result of circumstances unlikely to recur and that Ryan was particularly likely to respond affirmatively to probationary treatment; the plea agreement, as approved by the sentencing judge, was for sixteen months parole ineligibility, and the prosecutor agreed to take no position regarding parole; Ryan complied with all bail conditions for more than three-and-one-half years; Ryan's family and friends will provide a good support network while he is on parole; Ryan has a promise of employment upon release; Ryan acknowledged responsibility for his conduct and has expressed remorse; and Ryan has been a model prisoner.
Ryan's attorney argued that the Panel was remiss for not checking as an additional mitigating factor that Ryan's institutional adjustment was favorable. Counsel further argued that the weight of the relevant evidence did not support a conclusion that there was a reasonable expectation that Ryan would violate parole. He also objected to the Panel's reference to the multi crime conviction factor, arguing that both crimes arose from the same conduct. Counsel also criticized the Panel for taking exception to the characterization of what occurred as a "prank." He argued that the characterization was correct, was agreed upon by the prosecutor and the judge as a sufficient basis to support the plea, and "[t]here was no evidence that Mr. Ryan and Mr. Lepore intended to injure anyone or that it was reasonable to foresee that their conduct would cause such injury." In that regard, counsel pointed to unforeseeable intervening causes identified in the investigation, namely that the couches were highly flammable and that Seton Hall's policies and procedures for dealing with a fire were substandard. Finally, counsel criticized the Panel for holding it against Ryan for not coming forward sooner, insisting that he was exercising his constitutional rights.
We note that in its decision, the Panel did not check as a mitigating factor a favorable risk assessment evaluation. The pre-parole mental health evaluation dated October 26, 2007, which was included in Ryan's pre-parole report, included a risk assessment based upon objective psychological testing that placed Ryan in the low risk for recidivism category. We point this out at this juncture of our analysis because the Panel did award mitigation for average to above-average institutional reports, and because Ryan's attorney did not specifically raise the risk assessment issue in his appeal letter to the Board. This leaves us with some uncertainty as to whether the Panel considered the pre-parole report, which in turn contained the risk assessment, as part of the favorable institutional reports. Of course, because the check-off decision form contains a separate entry for the risk assessment evaluation, if it was considered by the Panel, it should have been checked.
When the Board considered the matter, it addressed specifically each of the points raised by Ryan through his attorney's appeal letter. Because the risk assessment issue was not specifically raised, the Board did not specifically address it. However, in its final decision of August 6, 2008, the Board referred specifically to consideration of Ryan's "Pre-Parole Reports and Institutional Progress Report." This implies that the risk assessment, which was contained in the pre-parole report, was considered.
In its final decision, the Board addressed each point raised by Ryan and stated its findings on each point. With respect to the counts to which Ryan pled and the sentence that was imposed, there could be no doubt that the Panel was fully aware of those circumstances. As to the sentencing judge's finding of mitigating factors that Ryan's conduct was the result of circumstances unlikely to recur and that Ryan was particularly likely to respond affirmatively to probationary treatment, the Board noted that the judge also found the presence of aggravating factors surrounding the offense, including the nature and circumstances of the offense and Ryan's role in it, the gravity and seriousness of the harm inflicted on the victims, and the need for deterrence, which the judge found substantially outweighed the mitigating factors. The Board found the judge's finding of a potential for amenability to probation supervision to be essentially irrelevant, because suitability for parole is determined based upon different factors, namely those set forth in N.J.A.C. 10A:71-3.11. The Board also found compliance with bail conditions irrelevant for the same reason. The Board was satisfied that the Panel was fully aware of and gave consideration to Ryan's support network and promise of employment upon release, and that he had been a model prisoner. As far as Ryan's acceptance of responsibility for his conduct and expressions of remorse, the Board noted that the Panel considered Ryan's repeated expressions of remorse for the victims and their families, but nevertheless determined that he needed assistance in continuing to understand how his criminal actions impact others and to understand empathy.
The Board was satisfied that the multi crime conviction criterion was properly applied because Ryan's two crimes occurred on two separate dates and involved separate conduct. The Board was satisfied that based upon the aggregate of information pursuant to N.J.A.C. 10A:71-3.11, there was a reasonable expectation that Ryan would violate parole. As to Ryan's contention that the Panel should not have taken exception to characterization of the incident as a prank and that there was no evidence that appellants intended to injure anyone or that it was reasonable to foresee that their conduct would cause injury, the Board stated:
By continuously noting that his offenses occurred as a result of a "prank," your client attempts to distance himself from the reckless behavior he chose to exhibit on January 19, 2000 thereby placing those in the hall in grave danger. Your client's assessment ...