On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Appellant Larry Stuart, an inmate at the New Jersey State Prison in Trenton, New Jersey, is currently serving a life sentence with a mandatory term of twenty-five years of parole ineligibility for the murder of a liquor store clerk on April 13, 1979. Appellant committed this homicide in the course of robbing the victim and his co-worker. At the time, appellant was on parole from a nine- to thirteen-year sentence imposed for a prior armed robbery.
On appeal, appellant seeks an order from this court reversing the Parole Board's June 30, 2010 decision denying his application for parole and imposing a future eligibility term (FET) of 240 months, pursuant to N.J.A.C. 10A:71-3.21. Appellant argues that the imposition of a 240-month FET was excessive because he has shown "remorse and a consciousness of wrongdoing and a willingness to change." In support of this argument, appellant cites to a number of anger management and self-improvement programs offered to inmates by the Department of Corrections that he completed. Appellant also claims to have successfully overcome a history of substance abuse by completing "a 12-Step program three times." With respect to prior disciplinary infractions, appellant claims that he has incurred only one infraction that involved violence over the past twenty-nine years of his current term of incarceration.
The Board's account of appellant's behavior during his most recent period of incarceration is quite different. The Board's record shows that appellant has committed twelve institutional disciplinary infractions, including two serious or "asterisk" infractions. Appellant's most recent disciplinary adjudication occurred on September 17, 2008. It concerned the possession or introduction of a prohibited substance or related paraphernalia.
Appellant sought to be paroled on February 17, 2009, after serving twenty-eight years and nine months of his sentence. This was the first time appellant was been deemed eligible for parole. He was denied parole at every stage of the process: first, by a two-member panel of the Board; then, by a three-member panel; and finally, by the full Board. The Board explained the basis for its decision in a letter addressed to appellant dated June 30, 2010. We incorporate by reference the findings and conclusions of the Board that are reflected in this letter.
The Board rejected appellant's claim that the agency's decision denying him parole was arbitrary and capricious because it was based on the Board's erroneous conclusion that appellant has been unable or unwilling to change his "thought process as it relates to [his] deadly behavior." After considering appellant's entire record, both inside the prison system and prior to his incarceration, the Board ultimately found, by a preponderance of the evidence, that there was a "substantial likelihood that [appellant] would commit a crime if released on parole." In addition, the Board upheld the imposition of the 240-month FET.
In Trantino v. New Jersey State Parole Board, 154 N.J. 19, 24 (1998), our Supreme Court articulated the relevant standard of appellate review for assessing the validity of a final decision of the State Parole Board. A reviewing court must examine:
(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [Ibid.]
As the party challenging the agency's action, appellant bears the burden of showing that the Board's decision should be overturned. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). The record in this case supports the Board's determination. Appellant has not overcome the presumption of validity associated with the Board's exercise of its statutory authority or otherwise shown how the agency's decision was arbitrary or capricious.