On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 8, 2011
Decided Before Judges Parrillo and Yannotti.
Appellant inmate, Henry Oliveria, appeals from a final decision of respondent, New Jersey State Parole Board (Board), denying him parole and establishing a 180-month Future Eligibility Term (FET). We affirm the denial of parole, but reverse the imposition of a 180-month FET and remand for further determination in that regard.
The relevant facts are as follows. Oliveria's March 4, 1983 conviction of murder following a jury trial resulted from his stabbing a seventy-nine-year-old male forty-three times with the apparent intention of robbing him. The victim suffered twenty-nine stab wounds in the chest area, six in the left shoulder, five in the back, two in the right hand, and a defensive wound inside the left index finger. The cause of death was listed as "multiple stab wounds of the chest penetrating the heart and lungs." On May 6, 1983, Oliveria was sentenced to a term of life imprisonment with a mandatory minimum of twenty-five years.
Prior to his murder conviction, Oliveria had three adult convictions, for shoplifting, N.J.S.A. 2C:20-11; assault and battery, N.J.S.A. 2C:12-1; and possession of burglary tools, N.J.S.A. 2C:5-5. He also had an extensive juvenile record. During his twenty-six and one-half-year period of incarceration on his present conviction, Oliveria has been found guilty of committing at least sixty-five institutional disciplinary infractions, including at least twenty asterisk offenses. His most recent infractions, for failure to provide a specimen for testing and possession of narcotic paraphernalia, occurred on August 10, 2008.
Oliveria first became eligible for parole on February 7, 2009. On
October 24, 2008, a hearing officer referred the matter for a hearing
before a Board panel due to the serious nature of the offense, i.e.,
murder, pursuant to the mandate of N.J.A.C. 10A:71-3.15(b).*fn1
On November 20, 2008, a two-member Board panel denied parole
and referred the matter to a three-member panel for the establishment
of a FET outside of the administrative guidelines. On March 4, 2009, a
three-member Board panel denied Oliveria parole and established a
On July 13, 2009, Oliveria filed an administrative appeal, requesting that the full Board reconsider the panel decisions of November 20, 2008 and March 4, 2009. On December 16, 2009, the Board affirmed the respective panel decisions to deny parole and establish a 180-month FET, concluding that: the Adult Panel has considered the aggregate of information pursuant to N.J.A.C. 10A:71-3.11 and fully documented and supported its decision for denying parole pursuant to N.J.A.C. 10A:71-3.18(f). Also, the full Board found that the Adult Panel's decision is based upon a determination that a preponderance of the evidence indicates that there is a substantial likelihood that you would commit a crime if released on parole at this time.
This appeal follows in which Oliveria challenges the Board's decision as arbitrary and capricious.
Because Parole Board determinations are highly "individualized discretionary appraisals," a decision of the Board concerning an inmate's suitability for parole under the statutory standards should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 25 (1998). The question of whether a statutory standard has been met is "'essentially factual'" in nature and judicial review is limited to determining whether the Board's "'factual finding could reasonably have been reached on sufficient credible evidence in the whole record.'" Id. at 24 (quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988)). See also Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 8 (App. Div.), certif. denied, 165 N.J. 523 (2000).
In addition, in reviewing the Board's determination of whether the standard for release has been met, we must give due regard to the ability of the factfinder to judge credibility and, where an agency's expertise is a factor, to that expertise. State v. Locurto, 157 N.J. 463, 470-71 (1999). See, e.g., In re Polk License Revocation, 90 N.J. 550, 578 (1982) (holding the court should not substitute its judgment for that of the agency). Under this standard, the Board's decision should only 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.'" Cestari, supra, 224 N.J. Super. at 547 (quoting 613 Corp. v. N.J. Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).
Here, because Oliveria was serving a sentence for a crime committed before August 18, 1997, the standard governing his release on parole is that contained in N.J.S.A. 30:4-123.53(a) before its amendment on that date. Before August 18, 1997, N.J.S.A. 30:4-123.53(a) and -123.56(c) provided that when an inmate becomes eligible for parole, the Board may deny parole release if it appears from a preponderance of the evidence that "there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time."*fn2
The overall legislative scheme is designed to minimize the likelihood of future criminal behavior and to limit the parole opportunity to those instances where there is a reasonable probability that the inmate will be law abiding. "The [Parole] Act thus posits the likelihood of future criminal conduct as the determinative test for parole eligibility and effectively establishes a presumption in favor of parole." In re Trantino Parole Application, 89 N.J. 347, 355-56 (1982). This is a "highly predictive and individualized discretionary appraisal" that necessarily takes into account "the aggregate of all of the ...