On appeal from a Final Decision of the State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Fasciale.
Frank "Shaky" Brown appeals from a denial of parole by the New Jersey State Parole Board (Board) and the establishment by it of a sixty-month future parole eligibility term (FET). He is presently seventy-four years of age and has been incarcerated since 1975, serving consecutive life terms for murder and as an habitual offender. On appeal, defendant raises the following issues:
THE NEW JERSEY PAROLE BOARD'S UNFETTERED DISCRETION TO DEVIATE FROM ADMINISTRATIVE GUIDELINES WITH NO SET TIMETABLE ALLOWS AN ARBITRARY, CAPRICIOUS AND MECHANICAL OPERATION OF THE STATUTE WHICH RESULTS IN VIOLATIONS OF THE STATUTES, CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES, AND REQUIRES REVIEW BY THIS COURT.
THE ABSENCE OF A SCHEDULE FOR FUTURE ELIGIBILITY TERMS OUTSIDE OF THE REGULATORY AND STATUTORY GUIDELINES RENDERS N.J.A.C. 10A:71-3.2[1(d)]*fn1 VOID FOR VAGUENESS AND UNCONSTITUTIONAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION.
On December 4, 1975, defendant was furloughed from Leesburg State Prison, where he had been serving ten- to fifteen-year concurrent sentences for a string of armed robberies. While on furlough, he resided with a local minister who provided religious services to the Leesburg prison population. On December 11, 1975, defendant met with a sixty-five-year-old resident of Bridgeton, he offered her financial assistance with her heating bill, and he made arrangements to meet with her again regarding the matter that evening. At approximately 8:20 p.m., the two were observed walking away from the woman's residence by her sister. When she did not return, the State Police were contacted. The following morning, the woman's body was discovered by a local couple. An autopsy indicated that she had been stabbed in the heart and that other injuries had occurred. Semen was found in the victim's vagina and rectum. Substantial evidence linked defendant to the crime, including a blood-stained jacket found in defendant's room bearing the name "Dr. Brown," the name given by the victim to her sister in a conversation that occurred in the interval between the perpetrator's first and second visit. Also, items linked to defendant were found at the victim's house and confessions to two individuals took place.
Defendant was charged with the murder and as a habitual offender. He pled guilty to the latter charge, but was tried for murder in a four-day proceeding that concluded with a guilty verdict. At the time of the murder, defendant had been adjudicated delinquent on two occasions as a minor and, in the period between 1956 and 1968, he had been convicted as an adult of twelve indictable offenses that included armed robbery, robbery, breaking and entering, grand larceny, and receipt of stolen property. Although defendant was periodically paroled, he was always rearrested for the commission of new crimes in a period of less than one year. Thus, defendant has spent virtually no time outside of a correctional institution since 1956.
On August 31, 2000, defendant was denied parole, and on November 24, 2001, a FET of 180 months was imposed. He became eligible again for parole on April 12, 2008. An initial hearing occurred on December 21, 2007, after which the hearing officer referred defendant's case to a Board panel, based on the following factors: the serious nature of defendant's offense, his prior criminal record, the nature of his crimes, his prior failed opportunities on parole to avoid further criminal behavior, prior parole violations, the fact that prior incarcerations had failed to deter defendant's criminal behavior, his commission of a crime while incarcerated, and his unfavorable interview with the hearing officer, at which time defendant denied his guilt and minimized his conduct. See N.J.A.C. 10A:71-3.11(b) (giving a ...