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Lepore v. New Jersey State Parole Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 13, 2009

JOSEPH T. LEPORE, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
SEAN M. RYAN, DOCKET NO. A-0013-08T2 APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.

On appeal from the New Jersey State Parole Board.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 26, 2009

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.

I.

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.

II.

We now describe the parole proceedings with respect to each appellant.

A. Sean M. Ryan

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 that the fire at Boland Hall, with the resulting deaths and injuries,

[w]as the result of a joke gone wrong, demonstrates he does not truly accept the seriousness of his actions.

The full Board concurs with the Adult Panel's determination of insufficient problem resolution based on your client's responses to questions posed by the Panel at the time of the hearing.

The Board rejected as unfounded Ryan's contention that he was being punished for not coming forward sooner. The Board concluded that the Panel's determination was based upon the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and was fully documented and supported. Accordingly, the Board affirmed the denial of parole and establishment of an eleven-month FET.

B. Joseph T. Lepore

Lepore's initial hearing was conducted on March 11, 2008. The hearing officer referred his case to a two-member Adult Panel for the following reasons: Serious nature of offense (arson); Nature of criminal record increasingly more serious; Presently incarcerated for multi crime conviction; Prior opportunity on probation has failed to deter criminal behavior; Insufficient program participation (specifically Focus on the Victim); Unfavorable interview (minimizes conduct); Commission of a crime while on bail; and Factors and circumstances of the offense (three deaths/fifty injured). When the matter went before the Panel, Lepore correctly pointed out that he did not commit these offenses while on bail, and that the hearing officer's check off of that item was incorrect. The record does not suggest that any further consideration was given to that incorrect information.

The Panel conducted a hearing on March 31, 2008. The transcript consumes 179 pages. At the conclusion of the interview of Lepore, the Panel deliberated, after which they rendered their decision denying parole and establishing an eighteen-month FET. One of the members stated:

We are making some suggestions at the bottom [of the notice of decision], one of which we've already talked about and that is to try to take Focus on the Victim. We understand you haven't been able to get into it, but we do believe that some type of counseling so that you better understand your emotions, your dealing with it, your judgment, your decision making and understanding remorse, too.

We also indicated we'd like you to try to consider substance abuse counseling only because, you know, the crime was committed, you were under the influence and you may be in need to have a little bit better understanding of how substance abuse impairs your judgment and decision making, which --which may have very well played a part in what you were doing at that time.

You're going to see all the reasons on the green paper. We're giving you an 18-month future eligibility term.

On the standard check-off form notice of decision, the Panel stated its decision, namely denial of parole with an eighteen-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 noted the following mitigating factors: Infraction free; 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 Panel checked off these reasons for denial of parole: Prior criminal record noted; Presently incarcerated for multi crime conviction; Prior opportunity on probation has failed to deter criminal behavior; Insufficient problem(s) resolution -- Specifically: Lack of insight into criminal behavior, Minimizes conduct, and Other, namely, continues to view this crime as a prank rather than a reckless act of endangerment/remains very defensive of his participation in the crime/inmate states "he always wanted to tell the truth and felt guilt," however failed to do so for over 3 years and even following being charged and arrested/seriously minimizes all of his criminal decision making/inmate has yet to address the emotional issues of his crime to understand empathy & remorse.

The Panel also wrote in as a final reason for denial of parole: "substance abuse may be minimal, yet has no insight as to how this affected his judgment and decision making." The Panel suggested participation in substance abuse counseling, institutional programs geared toward criminal behavior, and the Focus on the Victim program.

Lepore appealed to the full Board, by a letter from his attorney, who argued that the Panel failed to consider material facts and failed to document that a preponderance of the evidence indicates there was a reasonable expectation Lepore would violate parole.

Lepore's attorney listed these facts which he suggested were not considered or given appropriate weight by the Panel: Lepore pled guilty only to third-degree offenses and a disorderly offense; the sentencing judge found that his conduct was the result of circumstances unlikely to recur and that he was particularly likely to respond affirmatively to probationary treatment; he complied with all conditions of bail for more than three-and-one-half years; he had a good support network of family and friends; he had a promise of employment upon release; he acknowledged responsibility for his conduct and expressed remorse; and he had been a model prisoner.

Lepore's attorney further argued that the Panel should not have considered Lepore's non-violent juvenile adjudication as a prior criminal record, nor that he was not deterred from this criminal conduct by his juvenile probationary term. In this regard, he further argued that instead of finding as a reason for denial "prior criminal record noted," the Panel should have found as a mitigating factor "no prior criminal record or minimal criminal record." He further noted that Lepore signed up for and was on the waiting list for the Focus on the Victim program. Very significantly, mirroring an argument made by Ryan, Lepore's attorney argued that "[t]here was no evidence that Mr. Lepore and Mr. Ryan intended to injure anyone or that it was reasonable to foresee that their conduct would cause such injury." As in Ryan's appeal to the Board, Lepore's attorney pointed out allegedly unforeseeable intervening causes, namely the high flammability of the couches and substandard policies and procedures by Seton Hall for dealing with a fire.

Lepore's attorney also took issue with the Panel for "penalizing Mr. Lepore for not having come forward sooner." He argued that his client was entitled to remain silent and should not be penalized for exercising his constitutional rights.

As with Ryan, we note that the Panel did not check off as a mitigating factor consideration of the risk assessment evaluation. Lepore's pre-parole mental health evaluation dated October 26, 2007, which was included in the pre-parole report, included a risk assessment based upon objective psychological testing that placed Lepore in the low risk for recidivism category. However, as with Ryan, Lepore's attorney did not mention this in his appeal letter to the Board. In its final decision, the Board addressed each point raised in the appeal letter submitted by Lepore's attorney. It did not specifically mention the risk assessment evaluation, but did refer to the "Pre-Parole Reports and Institutional Progress Report." By referencing the pre-parole report, which contained that evaluation, we infer that it was considered.

The Board acknowledged the obvious, that the Panel was certainly aware of the offenses to which Lepore pled guilty. Also, it was well documented in the file that Lepore had a good support network of family and friends and a promise of employment upon release, and that he was a model prisoner.

As far as the sentencing judge's finding of mitigating factors that Lepore's conduct was the result of circumstances unlikely to recur and that he was likely to respond affirmatively to probationary treatment, the Board noted that the judge also found aggravating factors, namely the nature and circumstances of the offense and the role of Lepore in it, the gravity and seriousness of the harm inflicted on the victims, and the need for deterrence. And, the judge found that the aggravating factors substantially outweighed the mitigating factors. The Board further found that the sentencing judge's finding that Lepore was particularly likely to respond affirmatively to probationary treatment was not of particular significance because the parole determination must be based upon the factors in N.J.A.C. 10A:71-3.11. For the same reason, the Board found it insignificant that Lepore complied with the conditions of bail.

The Board was satisfied that it was proper to consider Lepore's adjudication of delinquency for four counts of theft of services and his one-year probationary term that had expired on April 1, 1998. This was appropriate for two reasons. First, it was a prior offense, although not characterized as a "crime" because it was committed by a juvenile. Further, the experience of being on probation for one year did not serve to deter Lepore from engaging in these criminal acts.

Finally, the Board addressed in one narrative passage Lepore's contentions that: (1) the Panel's finding that he lacked insight into his conduct was belied by Lepore's acknowledgment of responsibility and repeated expressions of remorse; (2) the Panel should not have taken exception to the characterization of what occurred as a prank; (3) there was no evidence that either Lepore or Ryan intended to injure anyone and it was not reasonable to foresee that their conduct would cause such injury; and (4) the Panel appeared to be penalizing Lepore for not having come forward sooner. The Board stated:

The Panel noted that during Mr. Lepore's hearing, he acknowledged that the fire resulted from the actions of him and his co-defendant. Mr. Lepore told the Panel that after passing a lit match back and forth with Mr. Ryan, Mr. Ryan flicked the match onto a banner and they both walked away. The lit banner caused a devastating fire, which resulted in three deaths and numerous injuries. Mr. Lepore asserts that his actions were a prank in that he and his co-defendant had hoped that the fire alarm would go off and students would have to stand outside in the cold weather. Mr. Lepore repeatedly expressed remorse for the victims of the fire and their families during the hearing.

The Panel noted that throughout the hearing your client maintained that he "always wanted to tell the truth," but did not know how to go about telling the truth. Your client stated that he did not tell the truth until November 2006, almost seven years after the event. Despite your client's assertions that he "always" wanted to tell the truth, the record portrays a different story. The record reflects that two days after the arson, your client met with M.K. at the Dunkin Donuts in Madison, New Jersey and attempted to induce him to withhold information from police regarding his knowledge of the events prior to the fire. This meeting resulted in your client's present conviction of the offense Witness Tampering. Your client was arrested on June 11, 2003 and maintained his claims of innocence until the date of his plea bargain hearing in November 2006. Your client also noted that he briefly shared the events of that night with his family. Overall, your client's actions in the days and years following the fire are inconsistent with his claims that he "always" wanted to tell the truth. In fact, his behavior, conduct and attitude up until the day he agreed to the plea bargain was representative of an individual trying to avoid the responsibility and blame for his dangerous and reckless behavior.

You also point out that there was no evidence that Mr. Lepore and Mr. Ryan intended to injure anyone or that it was reasonable to foresee that their conduct would cause such injury and that there was substantial evidence to the contrary -- there were unforeseeable intervening causes th[at] resulted in the deaths and injures at issue. The Panel noted that Mr. Lepore was charged [with] Arson -- Danger of Death, or purposely starting a fire thereby recklessly placing other persons in danger of death or bodily injury. The Panel notes that your client's reckless behavior resulted in tragic consequences. The Panel believes that your client has yet to address the emotional issues of his crime to understand empathy and remorse. 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 persons in the hall in grave danger. Your client's assessment that the fire at Boland Hall, with the resulting deaths and injuries, was the result of a joke gone wrong, demonstrates he does not truly accept the seriousness of his actions.

The full Board concurs with the Adult Panel's determination of insufficient problem resolution, specifically your client's lack [of] insight into his criminal behavior and his minimizing his conduct based on your client's responses to questions posed by the Panel at the time of the hearing.

Accordingly, the Board was satisfied that the Panel properly considered the aggregate information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision to deny parole and establish an eighteen month FET, and the Board affirmed that decision.

III.

The legal principles pertaining to parole decisions and their judicial review are well settled. As applicable to these cases:

An adult inmate shall be released on parole at the time of parole eligibility, unless information supplied in the report filed pursuant to [N.J.S.A. 30:4-123.54] or developed or produced at a hearing held pursuant to [N.J.S.A. 30:4-123.55] indicates by a preponderance of the evidence 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 imposed pursuant to [N.J.S.A. 30:4-123.59] if released on parole at that time. In reaching such determination, the board panel or board shall state on the record the reasons therefor.

[N.J.S.A. 30:4-123.53(a).]

As pertains to these cases, N.J.A.C. 10A:71-3.11 provides in relevant part:

(a) Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.

(b) The hearing officer, Board panel or Board shall consider the following factors and, in addition, may consider any other factors deemed relevant:

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 improvement of problems diagnosed . . . .

9. Statements by institutional staff, with supporting documentation, . . . 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.

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 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 victim.

23. The results of the objective risk assessment instrument.

The current Parole Act differs sharply from New Jersey's previous parole scheme, N.J.S.A. 30:4-123.16 (repealed), in which the Board could base its decision not only on the likelihood of future violations, but also on a determination of whether the inmate had been sufficiently punished for the underlying crime. N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 204 (1983). Under the current system, the amount of time an inmate is required to serve before becoming eligible for parole is determined at sentencing by the trial court in accordance with legislative standards. Id. at 205. The longer sentences and mandatory minimums now provided by the Code of Criminal Justice are presumed to ensure that the punitive aspects of an inmate's sentence are already satisfied by the time of the parole eligibility date. Ibid.

Therefore, the Board is not authorized in the current scheme to decide the sufficiency of punishment. The Board is restricted to a determination of the applicable standard under N.J.S.A. 30:4-123.53(a), as we have previously set forth. Under the current statutory scheme there is a presumption that the inmate will be released when eligible for parole because the punitive aspect of the sentence is deemed satisfied by the time the parole eligibility date is reached. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 40-42 (App. Div. 2003). The burden is on the State to establish a reasonable expectation that the inmate will violate the conditions of parole, considering all relevant factors in the aggregate. Although predictive of future conduct, as opposed to a finding regarding past conduct, this is essentially a factual determination. N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988).

Our standard of review therefore rests upon whether the factual finding could reasonably have been reached on sufficient credible evidence in the record as a whole. Ibid. Under this deferential standard, we will set aside the determination only "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." Ibid. (quoting 613 Corp. v. State of N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).

By their nature, parole decisions are highly "individualized discretionary appraisals." Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). Parole decisions involve "a discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done." Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed. 2d 668, 677 (1979). Such determinations of necessity contain a significant subjective element, requiring broad discretion in the decision making process. Puchalski v. N.J. State Parole Bd., 104 N.J. Super. 294, 300 (App. Div.), aff'd, 55 N.J. 113 (1969), cert. denied, 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed. 2d 270 (1970).

Notwithstanding the subjectivity inherent in the decision making process and the highly sensitive and individualized nature of each decision, the degree of judicial deference to a parole decision is no greater than the deference we give to all administrative decisions. Cestari, supra, 224 N.J. Super. at 548 n.6.

In these cases, there is no contention that either appellant failed to cooperate in his own rehabilitation. They were denied parole solely under the second prong of N.J.S.A. 30:4-123.53(a), based upon a reasonable expectation that they would violate parole. Our task, then, is to determine whether, considering all relevant factors (and no others), the Board's findings in that regard are supported by sufficient credible evidence in the record as a whole.

IV.

A significant theme of appellants' argument, in the administrative proceedings and now before us, is that in actuality the Board denied parole for the improper purpose of adding more punishment than required by the judicial sentence. They rely upon the voluminous victim input received by the Board, which bore two common threads, namely that the sentence provided insufficient punishment and that appellants should have come forward sooner. According to appellants, the parole officials in essence did the bidding of the victims rather than applying the correct criteria in reaching the parole decision.

As part of this argument, appellants take issue with the fact that notice of their parole eligibility was furnished to the victims. Further, appellants question whether the Essex County Prosecutor's Office adhered to a term of the plea agreement that it would not take any position regarding parole, because the Office of Victim and Witness Advocacy unit in that office participated in notifying victims and receiving their statements. We find no impropriety. Indeed, for any "offense involving serious bodily injury," the State is required to notify the prosecutor, who in turn "shall notify the Office of Victim and Witness Advocacy and that office shall use any reasonable means available to them to notify the victim of the anticipated release unless the victim has requested not to be notified." N.J.S.A. 30:4-123.53a(b),(d). Therefore, the representatives of the Board and the Essex County Prosecutor's Office were merely fulfilling their mandatory statutory duties in providing notice to the victims.

Of course, the victims are permitted to provide statements to the Board regarding the possibility of parole. And, the Board is authorized to consider those statements. N.J.A.C. 10A:71-3.11(b)(22). We agree with appellants that to the extent statements by victims did not bear upon germane issues, namely, in this case, whether there was a reasonable expectation that appellants would violate parole, the victims' statements were not relevant and should not have been considered. There is nothing in this record to demonstrate that the Board considered the feelings or wishes of the victims in reaching its determination to deny parole. We will not speculate to the contrary.

We reject the argument that the Board violated appellants' constitutional right to remain silent or otherwise improperly considered as a negative factor that they did not come forward and admit their guilt sooner. The Panel in each case explored that issue to gain insight into appellants' forthrightness in accepting responsibility for their conduct. Lepore, for example, said he always wanted to tell the truth from the beginning. Logically, the Panel followed up by asking why he did not do so. He gave many answers, including that he was afraid, he was ashamed, he followed his attorney's advice, he was in denial, he did not want to go to jail, and the like. We are satisfied that the Board did not consider the failure to come forward sooner for an improper purpose but to assist in the highly subjective analysis of the candor and forthrightness of appellants.

There is no dispute that both appellants were infraction free while incarcerated, participated in appropriate programs that were available to them, applied for other relevant programs and were on a waiting list, and interacted well with other inmates and staff. They achieved and maintained minimum custody status. They each had a promise of employment upon release and had available to them a good support network of family and friends.

Ryan was a first offender. Lepore had a juvenile adjudication for four counts of theft of services several years prior to these criminal events. He was sentenced to one year probation, which we assume he successfully completed. However, in his case, that experience with the juvenile justice system bears significance for two reasons. It renders these criminal acts repeat criminal acts, and it demonstrates that he was not deterred from committing these criminal acts by his prior probationary experience.

We agree with the Board that it was proper to consider the arson and witness tampering as separate crimes, and thus to consider the multi crime factor as a negative consideration in the parole decision. The crimes occurred two days apart. They were not based on the same conduct, and they were not part of an ongoing uninterrupted series of events. Knowing that they had set the fire two days earlier that yielded such tragic results, and with time to reflect upon what they would do in the face of a sweeping investigation, appellants made a deliberate decision to assist in the concealment of their culpability by attempting to persuade a witness to lie to investigators. This was a separate crime, the purpose of which was separate from (although related indirectly to) the arson itself. Thus, each appellant committed two distinct criminal acts, as opposed to engaging in a single act of aberrant behavior. Indeed, the second act was a purposeful criminal act.

In Lepore's case, he engaged in an additional act of unlawful behavior in the resisting arrest incident. We are mindful that the Board did not include that incident in the multi crime factor. We are also mindful that defendant pled guilty only to a disorderly persons offense and had already served in full his six-month sentence for the offense. We mention it, however, because, as we will next discuss, Lepore demonstrated in his Panel interview a true reluctance to accept responsibility for his wrongdoing. He denied any intention to resist arrest. He said he merely made a mistake in a bad situation. Indeed, he went so far as to suggest that the officers coming to arrest him set him up in a bad situation to induce him to act in the manner he did. Thus, not only did he fail to recognize his unlawful conduct, he shifted the blame to the victim and other assisting police officers.

We have summarized factors that would favor parole. There were also favorable institutional reports and the pre-parole report, including the psychological risk evaluations concluding that appellants were in the low risk of recidivism category. Weighed against these considerations were the Board's considerations of the multi crime nature of the offenses and, in Lepore's case, his prior adjudication and probation. The Board also considered as the most significant factor weighing against parole appellants' minimization of their criminal conduct by insisting that it consisted of only a prank that got out of hand. Therefore, the Board found that appellants needed more time to understand and reckon with the seriousness of their criminal culpability. Along the same lines, the Board noted that appellants did not admit to anyone, including their families or lawyers, until the time of the plea or immediately before, nearly seven years after the crime, that they started the fire. They were in denial for much of the time (particularly Ryan), hoping unrealistically that the investigation would reveal some other cause of the fire, perhaps an electrical problem. And, because neither of them obtained any counseling, although they both expressed great sadness and remorse, they needed more time to reflect upon the effect of their wrongdoing on the victims.

Appellants argue that the "prank" characterization is not dispositive of anything, that it was a characterization negotiated as part of the plea agreement and accepted by the prosecutor and the judge. They further argue there is nothing inconsistent with a prank that got out of control in which they did not intend to hurt anyone on the one hand, and the crime to which they pled guilty, on the other.

To analyze this proposition, we consider the elements of the crime to which appellants pled guilty and were convicted, third-degree arson. A person is guilty of that crime "if he purposely starts a fire . . . , whether on his own property or another's . . . [t]hereby recklessly placing another person in danger of death or bodily injury." N.J.S.A. 2C:17-1b(1). Guilt requires proof beyond a reasonable doubt of two elements: (1) that the defendant purposely started the fire; and (2) that the act of starting the fire recklessly placed another person in danger of death or bodily injury. See Model Jury Charge (Criminal), "Arson" N.J.S.A. 2C:17-1b (2003). Following the applicable provisions in the model jury charge, the following must be established in order to be found guilty of this offense:

The first element the State beyond a reasonable doubt is that the defendant purposely started a fire. It is not necessary that any significant damage be done. It is only necessary that a fire be started under [circumstances in which it recklessly places another person in danger of death or bodily injury]. The lack of success of the perpetrator is immaterial.

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or believes or hopes that they exist. "With purpose," "designed," "with design," or equivalent terms have the same meaning. Purpose is a condition of the mind which cannot be seen and can only be determined by inferences drawn from the defendant's conduct, words or acts. It is not necessary for the State to prove the existence of such a mental state by direct evidence such as a statement by the defendant that he had a particular purpose. It is within the power of the jury to find that the proof of purpose has been furnished beyond a reasonable doubt by inferences which you may draw from the nature of the acts and the circumstances surrounding the conduct of the defendant as they have been presented in the evidence you have heard and seen in this case. In other words, in order for the State to prove this element of the offense, you must be satisfied beyond a reasonable doubt that it was the defendant's purpose or conscious object to start the fire.

The second element the State must prove beyond a reasonable doubt is that the defendant by purposely starting the fire recklessly placed another person in danger of death or bodily injury. "Bodily injury" means physical pain, illness or any impairment of physical condition. I have already defined the term "purposely" for you. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. [Emphasis added.]

There is no dispute that appellants purposely set the fire. In the course of their Panel hearings, they did not deny this, although there is ample support from their statements undergirding the Board's finding that they attempted to distance themselves from the seriousness of it. For example, they said the construction paper banner was only smoldering when they left it unattended and had not gone up in full-fledged flames; they said they thought it would just provide enough smoke to set off the fire alarms but would eventually die out. Of course, the banner was draped over a couch, and appellants acknowledged that they ignited it intentionally and then left it unattended.

More significant, however, is their mental state. In their plea allocutions, appellants, rather than describing in their own words what they did and what they were thinking (e.g. being aware of a substantial and unjustifiable risk of placing others in danger of injury or death, which they consciously disregarded), they each read a prepared statement. Thus, when asked what happened, Lepore stated:

I, along with Sean Ryan, lit a banner on fire that was draped across the couch in the third floor lounge of Boland Hall on January 19th, 2000, at approximately 4:00 in the AM. In doing so, I did not intend to harm or injure anyone. It was a prank that got out of hand.

Ryan's statement was nearly identical, except, of course, it began with, "I, along with Joseph Lepore, . . . ."

Throughout the administrative parole proceedings and continuing in this appeal, appellants insist that injuring anyone was not foreseeable. Throughout their panel hearings, appellants adhered to that position. Yet, in our view, that position runs counter to an established and adjudicated fact, namely, that for them to be guilty of the crime to which they pled, they had to have consciously disregarded a substantial and unjustifiable risk that their conduct would cause the particular result defined in the offense, see N.J.S.A. 2C:2-2b(3), namely placing another person in danger of death or bodily injury. See Kosmin, supra, 363 N.J. Super. at 42 (distinguishing between the significance for parole purposes of refusing to admit an established or adjudicated fact and a fact that might not be true and is neither objectively determined or determinable).

Third-degree arson is distinguished from the more serious offense of second-degree aggravated arson, in which the perpetrator purposely starts a fire "[t]hereby purposely or knowingly placing another person in danger of death or bodily injury." N.J.S.A. 2C:17-1a(1). For that offense, it must be the perpetrator's purpose or conscious object to place another person in danger of death or bodily injury, or the perpetrator must know or be practically certain that his conduct will place another person in danger of death or bodily injury. See N.J.S.A. 2C:2-2b(1), (2).

The risk appellants consciously disregarded in this case was extremely substantial and extremely unjustifiable. The conduct consisted of igniting a large paper banner, and, knowing that it was burning (or smoldering) and draped over a couch, leaving it unattended. The admitted purpose was to create enough smoke to set off the fire alarms. This was done at about 4:30 a.m. in a multistory building with scores of potential victims sleeping. Thus, although the offense could be committed by placing only one victim at risk of relatively non-serious "bodily injury," see N.J.S.A. 2C:11-1a, many persons were placed at much greater risk, including the risk of significant or serious bodily injury, see N.J.S.A. 2C:11-1d, b, or death. Tragically, multiple victims suffered such injuries, and three died.

We set forth this analysis not to suggest that appellants should be punished as if they committed a more serious offense or beyond the punitive aspect of their sentence that was judicially imposed. We set it forth to explain why we find support in the record for the Board's finding that appellants have not accepted and admitted the seriousness of their criminal conduct. Failure to recognize the seriousness of one's criminal culpability -- in this case, consciously disregarding such a highly substantial and unjustifiable risk -- is predictive that the person will not, in the future, recognize the serious nature of wrongful conduct and might act in disregard of that seriousness. See N.J.A.C. 10A:71-3.11(b)5 (authorizing consideration of facts and circumstances of offense), and (b)17 (authorizing consideration of statements by the inmate reflecting on the reasonable expectation that he or she will violate the conditions of parole).

Similar analysis pertains to the sentencing judge's findings on aggravating and mitigating factors. The nature and circumstances of the offense were extremely egregious, and the judge rightly attributed very substantial weight to that aggravating factor. Further, in awarding mitigating factors to both appellants, the judge gave them "the benefit of the doubt," but attributed low weight to his determination that their conduct was the result of circumstances unlikely to recur and that they would be likely to respond affirmatively to probationary treatment. Thus, the judge found that the aggravating factors substantially outweighed the mitigating factors. The judge further found that, having regard to the nature and circumstances of the offense and the history, character and condition of appellants, their imprisonment was necessary for the protection of the public. See N.J.S.A. 2C:44-1e. This finding, along with the finding of a substantial preponderance of aggravating factors, substantially undercuts any mitigating factors found and their low weight. Therefore, the Board acted reasonably in refusing to attribute favorable weight to the mitigating factors found at sentencing. See N.J.A.C. 71-3.11(b)6 (authorizing consideration of aggravating and mitigating factors surrounding the offense), and (b)20 (authorizing consideration of statements by the court reflecting the reasons for the sentence imposed).

With respect to the witness tampering, each appellant also read a prepared statement to supply his factual basis. When asked what happened, Lepore said:

I, along with Sean Ryan, met with others after the fire at Dunkin' Donuts in Madison in order to induce others to testify about something other than the truth about things that occurred the night of the fire in Boland Hall.

Ryan's statement was nearly identical, except, of course, that it began with "I, along with Joe Lepore, . . . ."

In Lepore's psychological evaluation as part of his pre-parole report, the evaluator stated: "He reports that he was falsely charged with trying to tell the witness what to say." In Ryan's psychological evaluation, the evaluator reported: "In regards to the tampering offense, he states that he was wrongly charged with encouraging a witness to lie." In his Panel hearing, Lepore did not acknowledge full responsibility for this offense, but characterized it in terms of the State considering what he did to be witness tampering.

Again, this is evidence supporting the Board's finding that appellants have failed to acknowledge their criminal culpability and that they have minimized or "distanced themselves" from their criminal conduct. In Lepore's case, this consideration was further amplified by his minimization of wrongdoing in connection with his resisting arrest offense.

In both cases, the Board adopted the Panel's recommendation that appellants complete the Focus on the Victim program. We recognize that the program was not available and that both appellants had signed up for it and were on the waiting list.

The Board recognized it as well. Failure to participate in this program (which was not available) was not a basis for denying parole. It was merely a recommendation to take the program if it became available in order to help appellants better understand their criminal decision making and to empathize with the victims they affected.

In Lepore's case, the Panel listed as one of the reasons for denying parole the need for substance abuse evaluation, noting that although his substance abuse may be minimal, he has no insight as to how this affected his judgment and decision-making. On the night of the fire, Lepore admitted to having two or three beers. Based upon the investigation, which we previously described, the Board was justified in suspecting that he might have consumed more and the effects of alcohol might have adversely affected his judgment. This was only one of a multitude of factors, considered in the totality of the circumstances, both favorable and unfavorable in the parole evaluation. The finding was reasonable under all of the circumstances.

The establishment of the FETs in each case demonstrates that the Board gave fair consideration to mitigating circumstances in each case weighed against circumstances militating against parole. Upon denial of parole, appellants were subject to a presumptive FET of twenty months. N.J.A.C. 10A:71-3.21(a)3. That FET "may be increased or decreased by up to nine months when, in the opinion of the Board panel, 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). In each case, the Panel made a downward adjustment. Lepore received a two-month downward adjustment, and Ryan received the maximum nine-month downward adjustment. These determinations demonstrate that significant consideration was given to mitigating circumstances. The determinations also reflect the individualized assessment in each case and a reasoned exercise of discretion.

V.

We view these as close cases. Most of the objective factors favor parole. These include, for example, absence of institutional infractions, participation in available programs, the presence of a good support system and promise of employment, the absence of any criminal conduct in the seven years intervening between the crime and sentence and compliance with bail conditions during that time, favorable institutional reports and low risk for recidivism assessments, and the like. The principle negative factor in each case (other than the multi crime factor in both cases and, in Lepore's case, his prior record and probation) was subjective. From our reading of the complete transcripts of appellants' Panel hearings and other pertinent documents in the record, and for the reasons we have set forth in this opinion, we conclude that the Board's subjective and discretionary assessment that appellants have not sufficiently accepted and acknowledged the seriousness of their criminal conduct is supported, as is the Board's finding that the greater weight of the evidence indicates a reasonable expectation that parole would be violated. This is so because an individual who commits serious criminal acts and refuses to admit the seriousness of his wrongdoing and the full blameworthiness of his conduct is more likely to engage in wrongful conduct in the future, which could be the commission of another offense or some other noncompliance with the conditions of parole.

We may not substitute our judgment for the Board's. Even if we might have reached a different result after evaluating the record, if "the evidence and the inferences to be drawn therefrom support the agency head's decision, then [we] must affirm." Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). Considering our highly deferential standard, we fall just short of reaching a definite conviction that the Board's determination was so wide of the mark that a mistake must have been made. Accordingly, we are constrained to affirm in both cases.

Affirmed.


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