August 2, 2011
JOSEPH STENSON, APPELLANT,
NEW JERSEY PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 26, 2011
Before Judges Graves and Yannotti.
Joseph Stenson appeals from a final decision by the New Jersey State Parole Board (the Board) dated January 27, 2010, that denied him parole and established a 120-month future eligibility term (FET). We affirm.
In 1980, a jury convicted defendant of premeditated murder, felony murder, rape, robbery, and various other offenses.
During defendant's sentencing hearing on May 13, 1980, the trial judge noted that the State's proofs included an eight-page written statement by defendant, "which set forth a description and chronology of events with exquisite detail." The court further noted that the statement had been "corroborated with numerous real and circumstantial evidence" and "contained within it proof of each and every element of each and every count of the indictment." In addition, the judge noted that defendant had testified in his own defense and "attributed all of the crimes charged in the indictment to other named individuals," but the jury accepted defendant's "statement to the police at the time of his arrest as the true and correct recital of the events which led to the death of the victim."
The trial judge described the circumstances of the crimes as follows:
At about 1:00 p.m. on January 9, 1979 [the victim], a 45-year old married woman, entered a one-family residence [on] Clendenny Avenue, Jersey City, where Defendant Joseph Stenson, age 20, resided with his mother. [The victim] worked for the Avon Company and came to the Stenson home in the apparent belief that she was soliciting a prospective seller of Avon products. Stenson, a nighttime security guard who lived with his mother, a Staten Island hospital employee, described the enticement thusly: I called the number and spoke to a woman and told her my name was Miss Tyler and I wanted to sell Avon products. She said, sure, I will get back to you. Then she sent me one of them small postcards telling me to come to some place and if I couldn't make it, they would call me back after the holidays. She did and said she would come to my house at 1:00 p.m. I can't remember the day or the date. But that is the day that she came.
When she arrived at the house that day, he let her in and after a short charade in which he said he was going to get his mother, he seized a knife and told her he wanted money. Thereafter, he hit her, stripped her, raped her and then struck her about 12 times with a stick which he described as being a bit thicker than a mop handle and about a yard long, bludgeoning her to death. His description of this beating, which resulted in multiple skull fractures, subdural and epidural hematomas, and lacerations and contusions of the brain, is fully and completely corroborated by the photographs of the victim which showed the destruction of her skull, bruises to her breasts, and bruises on her arms where she sought vainly to protect her head against the vicious attack. Following the rape, the theft and the murder, Stenson wrapped the body in sheets, carried it and placed it in the rear of [the victim's] automobile, abandoned the car some distance away and returned to clean up his living room in what turned out to be a vain effort to erase the evidence of the brutal scene which had shortly before been enacted.
Nevertheless, when asked if he had anything to say prior to the imposition of sentence, defendant claimed the police "made [him] sign blank papers," and he denied his guilt:
First of all, your Honor, I did not do this crime I was accused of. Second of all, I would like to go back a little bit, I did not make a confession to killing nobody. I told them who did it. Detectives Worthy and Harrison -- they sat me in a room and made me sign blank papers, and hooked up a confession on me.
I am sorry. I am sorry for the lady, and her daughter. I told the police who did it. I am a human being just like them. Don't sit there and call me an animal for something I didn't do. Accuse me of rape? I didn't rape nobody. There is no proof of a rape. I didn't rape nobody.
The trial judge imposed a life sentence for murder and a consecutive sentence of fifteen to twenty years for rape.
Defendant received concurrent sentences for the other offenses.
On October 23, 2008, a two-member panel denied parole and referred Stenson's case to a three-member panel for the establishment of an FET outside of the administrative guidelines. The two-member panel denied parole based on the following factors: the severity of Stenson's criminal conduct; his incarceration for a multi-crime conviction; and insufficient problem resolution, which included a lack of insight into his criminal behavior, his minimization of his conduct, and his failure to sufficiently address a substance abuse problem. The panel further noted that Stenson had initially blamed the crimes on "drugs" and his father for leaving him at a young age, but he subsequently claimed he was a "sex addict." The panel also considered the following mitigating factors: Stenson participated in programs specific to his behavior and other institutional programs, and he achieved and maintained gang minimum custody status.
A three-member panel reviewed Stenson's case on January 21, 2009, and it relied on the same factors and documents that the two-member panel considered. Based on "a comprehensive review of [Stenson's] entire record," the three-member panel determined there was a substantial likelihood that Stenson would commit a new crime if he was released on parole and that the presumptive FET was "clearly inappropriate" because: (1) Stenson was "unable to identify the causes of [his] criminal behavior, as evidenced by [his] propensity to alter the reasons for . . . the present offenses"; (2) Stenson had not completed any programs or counseling regarding his "sexual addiction" and "sexually related issues"; and (3) he had "not sufficiently addressed the significant substance abuse issue that . . . contributed to [his] violent criminal behavior."
Stenson filed an administrative appeal and on January 27, 2010, the Board affirmed the panel's decision to deny parole and impose a 120-month FET. The Board determined the panel had considered all of the relevant information under 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)."
Stenson raises the following points on appeal:
THE STANDARD OF REVIEW FOR PAROLE CONSIDERATION OF A TITLE 2A CONVICTION OCCURRING IN 1979 IS WHETHER THERE IS A SUBSTANTIAL LIKELIHOOD THAT AN INMATE WILL COMMIT A CRIME UNDER THE LAWS OF THIS STATE IF RELEASED ON PAROLE.
THE PAROLE BOARD HAS DEMONSTRATED ITS INABILITY TO FOLLOW AND APPLY THE LAW-THE ADMINISTRATIVE CODE REGULATIONS PERMITTING "HITS" OUTSIDE OF THE PRESUMPTIVE GUIDELINES SHOULD BE STRUCK DOWN AS ARBITRARY AND UNCONSTITUTIONAL.
THE BOARD PANEL FAILED TO SUPPORT ITS CONCLUSION THAT APPELLANT LACKED INSIGHT INTO THE PRESENT OFFENSE.
We have considered these arguments in light of the record and the applicable legal principles, and we conclude they are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(D) and (E). We add only the following comments. Our scope of review is limited. We recognize "the Board has 'broad but not unlimited discretionary powers'" in rendering parole decisions. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)). Nevertheless, we must review the decision as we do decisions of other administrative agencies, to determine whether the Board has exercised its power arbitrarily or capriciously. Ibid. "Accordingly, the critical and controlling question in this appeal is whether a preponderance of the credible evidence in the record supports the Board's determination that there is a substantial likelihood that [Stenson] will commit a crime if he is released on parole."
Id. at 126.
We conclude from our examination of the record that the Board applied the proper statutory standard and there was sufficient credible evidence to support its decision to deny parole and impose a 120-month FET. See, e.g., McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002) (upholding the establishment of a thirty-year FET); see also Johnson v. Paparozzi, 219 F. Supp. 2d 635, 642-43 (D.N.J. 2002) (rejecting an inmate's argument that the setting of a 120-month FET was unconstitutional where the Board considered the factors enumerated in N.J.A.C. 10A:71-3.11).*fn1