On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Parrillo and Skillman.
Appellant Christopher Righetti, an inmate currently incarcerated at Northern State Prison, appeals from a November 17, 2010 final decision of the Parole Board, which denied his application for parole and established a one-hundred forty-four month future parole eligibility term (FET).
Appellant is serving a term of life imprisonment for murder. He has been denied parole on three prior occasions.
In its decision denying parole from which this appeal was taken, the Board found that appellant's prior criminal record, including a prior rape adjudication as a juvenile, the increasingly serious nature of his offenses culminating in his conviction for murder, the fact that the murder was committed while appellant was on parole, that neither prior opportunities for probation and parole nor prior incarceration had deterred his criminal behavior, and appellant's lack of insight into his criminal behavior as demonstrated by his parole interview, documentation in his case file and confidential professional reports, supported a finding that there is a substantial likelihood he would commit another crime if released on parole at this time.
Our review of a final decision of the Parole Board denying parole is limited to determining whether its findings could reasonably have been reached based on sufficient credible evidence in the record. Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998). We are satisfied based on our review of the record before the Parole Board that there was sufficient evidence to support its finding that there is a substantial likelihood appellant would commit another offense if released on parole at this time.
However, the part of the Parole Board's final decision which imposed a one-hundred forty-four month FET must be reversed. As amended in 2010, L. 2009, c. 330, § 6.
N.J.S.A. 30:4-123.56(a) provided that "in no case shall any parole eligibility date scheduled pursuant to this subsection be more than three years following the date on which an inmate was denied release." This amendment became effective on August 1, 2010. L. 2009, c. 330, § 12. Although the initial decision of a three-member panel of the Parole Board imposing the one-hundred forty-four month FET was issued on June 30, 2010, the full Parole Board's final decision adopting this FET was not issued until November 17, 2010. By that date, the amendment to N.J.S.A. 123.56(a) establishing a maximum period of three years for any FET had become effective and should have been followed by the Board.
We note that during the pendency of this appeal, the Legislature repealed the part of N.J.S.A. 30:4-123.56(a) that established a maximum three-year period for any FET. L. 2011, c. 67. Therefore, the Parole Board may now impose a FET in excess of three years in appropriate cases. However, the one- hundred forty-four month FET imposed on appellant did not give adequate weight to mitigating factors applicable to his case, such as his participation in behavior-specific institutional programs, above-average institutional reports, and favorable institutional adjustment, and thus was unreasonably long. Consequently, the Parole Board should now set a shorter FET that gives appropriate consideration to those mitigating factors.
Accordingly, we affirm the part of the Parole Board's final decision that denied appellant's application for parole. However, we reverse the part of the Board's decision that established a one-hundred forty-four month FET and remand the matter to the Parole Board to establish a new FET in conformity with this opinion.
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