September 9, 2019
appeal from the New Jersey State Parole Board.
Ira Afran argued the cause for appellant.
Christopher Josephson, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney General, of
counsel; Christopher Josephson, on the brief).
Judges Fasciale, Rothstadt and Moynihan (Judge Rothstadt
accordance with remand instructions from the Supreme Court,
Acoli v. N.J. State Parole Bd. (Acoli II),
224 N.J. 213, 217 (2016), the New Jersey State Parole Board
(the Board) conducted a full Board in-person hearing to
complete Acoli's administrative parole process. The Court
remanded solely on procedural grounds, disagreeing with our
earlier determination that a full Board hearing was not
required. Id. at 232. Acoli-a convicted murderer of
a State Trooper-appeals from the Board's
unanimous June 21, 2017 final agency decision (final
decision) denying parole and imposing a 180-month Future
Eligibility Term (FET).
remand hearing, the Board extensively questioned Acoli about
a multitude of subjects, including his prior assertion that
he "blacked out," which Acoli maintained rendered
him unable to remember how the trooper died. But at the full
Board hearing, Acoli provided these details: he explained
that while he struggled with the trooper, another trooper
"probably" shot the trooper with a "friendly
fire shot." That explanation-which necessarily required
that he was conscious during the struggle when the
"friendly fire shot" occurred- contradicted
Acoli's previous assertion that a bullet grazed his head,
rendering him temporarily unconscious.
review of the final decision comes to us on a different
record. In addition to considering a critical confidential
report by a new psychologist, the Board extensively
questioned Acoli, which is demonstrated by the 286-page
transcript of the hearing. The Board considered the entire
administrative paper record, the new psychological
evaluation, and, importantly, Acoli's own responses,
leading it to conclude-based on a preponderance of the
evidence- that there was a substantial likelihood that Acoli
would commit another crime if paroled.
more developed record, we conclude the Board applied the
correct law, the record contains substantial credible
evidence to support its findings, and there is no basis to
determine that the Board clearly erred in reaching its
conclusion. The Board's final decision is not arbitrary,
capricious, or unreasonable.
1973, Acoli murdered State Trooper Werner Foerster and
assaulted State Trooper James Harper. After a lengthy trial,
a jury found him guilty of "murder; atrocious assault
and battery; assault and battery; assault with an offensive
weapon; assault with intent to kill; illegal possession of a
weapon; and armed robbery." Id. at 218. Acoli
received life in prison for the murder conviction. The judge
imposed consecutive sentences of "ten to twelve years of
imprisonment for his conviction for assault with intent to
kill; two to three years of imprisonment [for his conviction]
for illegal possession of a weapon; and twelve to fifteen
years of imprisonment [for his conviction] for [the] armed
robbery." Ibid. The aggregate sentence equaled
life plus twenty-four to thirty years. Ibid.
2010, Acoli became eligible for parole. A hearing officer
referred the matter to a Board panel for a hearing. On March
4, 2010, a two-member Board panel interviewed Acoli and
concluded that "a substantial likelihood exists that
[he] would commit a new crime if released on parole at this
time." Ibid. On July 7, 2010, a three-member
Board panel set a 120-month FET.
appealed to the full Board, which conducted a "paper
hearing." That hearing was substantially different than
the Board's hearing on remand. The "paper
hearing" entailed consideration of the record before the
hearing officer and the two- and three-member panels. Unlike
in the full Board hearing leading to this appeal, the Board
did not hear testimony or create its own record. On February
23, 2011, the Board upheld the denial of parole and the
establishment of the 120-month FET.
appealed to us. Looking at the administrative record and the
merits of the Board's February 23, 2011 decision, we
reversed the denial of parole and concluded the Board's
basis for denying parole was arbitrary. This court then
ordered the Board to set conditions for Acoli's parole.
See Acoli v. N.J. State Parole Bd. (Acoli
I), No. A-3575-10 (App. Div. Sept. 29, 2014) (slip op.
at 10). On procedural grounds, the Board unsuccessfully
sought reconsideration of our judgment, solely contending
that a full Board in-person hearing was required before
proceeding directly to release.
Supreme Court granted the Board's petition for
certification, interpreted N.J.S.A. 30:4-123.55(f),
agreed with the Board that it was entitled to conduct a full
hearing. The Court remanded with instructions for a
"full Board in-person review and hearing of a convicted
murderer prior to his or her parole release." Acoli
II, 224 N.J. at 217. As to the merits of Acoli's
parole, the Court stated:
We express no view on what the outcome of that full
assessment should be. Whatever it shall be, there will be a
right of appeal to the Appellate Division. If Acoli is denied
parole, then that would be the appropriate time at which the
Appellate Division might have occasion to consider whether
the unusual remedy of judicially ordered parole of a
convicted murderer might be in order. However, that
possibility must await completion of the parole process in
[Acoli II, 224 N.J. at 232.]
8, 2016, the Board conducted the hearing. Board members
extensively questioned Acoli and gave him an opportunity to
read a prepared statement. The Board considered the entire
record before it, including the new confidential
psychological evaluation, which had a significant impact on
the Board's decision.
8, 2016, the full Board denied parole. On that date, the
Board rendered its "Panel Decision," which reflects
that the Board found-once again-that there existed "a
substantial likelihood" that Acoli "would commit a
new crime if released on parole." After further
documenting the consideration of multiple mitigating factors,
and as part of its conclusion that Acoli lacked insight into
his criminal behavior, the Board stated:
[Acoli] cannot articulate how he has changed his antisocial
thought patterns. [He] [p]resents as continuing to believe
his actions were justified. [He] has no understanding why he
believed violence was necessary to affect social change, nor
does he demonstrate understanding how his criminal thinking
pattern has changed.
next day, the Board notified Acoli that "establishing a
[FET] within the Board's presumptive schedule may be
inappropriate due to your lack of satisfactory progress in
reducing the likelihood of future criminal behavior."
The Board then referred the FET issue to the full Board. On
November 16, 2016, the full Board established a 180-month
FET, and on December 22, 2016, the Board rendered a
comprehensive written decision for its FET determination.
final decision (addressed to defense counsel), the Board
stated it was responding to Acoli's "administrative
appeal . . . of the Board's June 8, 2016 decision to deny
[Acoli] parole[, ] and the Board's November 16, 2016
decision[, ]" which established the 180-month FET. The
Board rejected Acoli's argument that it failed to apply
the "post-August 19, 1997" parole release
standards. The Board stated:
In accordance with New Jersey statutes, Administrative Code,
and court decisions, the standard for parole where the
committed offense(s) occurred prior to August 19, 1997, is
whether the preponderance of evidence indicates a substantial
likelihood that an inmate would commit a new crime if
released on parole. The Board finds that [Acoli's]
commitment offenses occurred in 1973 and that therefore, it
is the "substantial likelihood" standard that
applies to his case.
final decision, the Board acknowledged Acoli's additional
contentions pertinent to the denial of parole. Acoli argued
that the Board withheld confidential information, excluded
favorable information, violated his due process rights,
ignored material facts, and rendered an excessive FET. The
Board acknowledged those arguments and addressed them in the
Acoli's assertion that the Board violated his due process
rights, the Board explained that it "carefully and
thoroughly reviewed all the reports contained in the case
file," and reached its decision "on the totality of
the information in the administrative record." The Board
noted that as part of the full hearing on remand, it gave
Acoli the opportunity to participate and provide information.
Indeed, Board members thoroughly questioned Acoli, and he
read a prepared statement that he and his friend drafted. The
Board contended it did not violate his due process rights
because it denied parole after fully applying the
requirements of N.J.A.C. 10A:71-3.11 (setting forth multiple
factors considered at parole hearings).
final decision, the Board rejected Acoli's argument that
it failed to consider material facts. Acoli maintained that
the Board did not consider his age, his lack of prior
convictions for violent crimes, his listing as
infraction-free in a lesser security status, his good
institutional work record, and his parole plans. Acoli
specifically contended that he led a crime-free life for
roughly forty years, and that he took "full
responsibility" for the trooper's death. The Board
explained its reasons for denying parole, which we have
[The] serious nature of offense (homicide of a law
enforcement officer); prior offense record noted; nature of
criminal record increasingly more serious; committed to
incarceration for multiple offenses; prior opportunity on
probation has failed to deter criminal behavior; and
commission of current offense while on recognizance bail.
Furthermore, based on [Acoli's] responses to
questions posed by the Board at the time of the [full]
hearing [on remand], the pre-parole report, and the
documentation in the case file, the Board determined that
[Acoli] exhibited insufficient problem resolution,
specifically, that he lacked insight into his criminal
behavior; that he denied his offense, and that
he minimized his conduct. The Board [repeated],
"[Acoli] cannot articulate how he has changed his
anti-social thought patterns. [Patterns] as continuing
to believe his actions were justified. Has no
understanding why he believed violence was necessary to
affect social change, nor does he demonstrate
understanding how his criminal thinking pattern has
changed." The Board . . . relied on
confidential material and, pursuant to N.J.A.C.
10A:71-2.2(c), identified for the record the nature of the
confidential information. The Board also considered
[Acoli's] risk assessment evaluation score of
[twenty], which indicates a moderate risk of recidivism.
Additionally, the Board noted as mitigation: minimal offense
record; all opportunities on community supervision completed
without violations; infraction free since last panel;
participation in programs specific to behavior; and
participation in institutional programs.
. . . .
[T]he Board reviewed [Acoli's] entire record in
rendering its decision. His age and personal and medical
histories; his criminal history; his record of rehabilitative
program participation (including each of those programs
referenced in [his] [administrative] appeal); his current
custody status and institutional work history; and his
infraction-free status (since his last Board panel hearing);
are all matters of record . . . . [T]he Board appropriately
noted as mitigation on the Notice of Decision: minimal
offense record; all opportunities on community supervision
completed without violations; infraction free since last
panel; participation in programs specific to behavior; and
participation in institutional programs. As a result, the
Board . . . did not solely base its decision to deny
parole on the negative aspects in the record, rather, the
Board . . . based its decision on the entire
record governed by the factors set forth in . . .
. . . .
[T]he Board . . . consider[ed] [Acoli's] parole
plans . . . which includ[ed] his proposed place of
residence and his employment plans [and] noted on the Case
Assessment at the time of his [i]nitial [p]arole [h]earing .
. . . Additionally, the Board routinely reviews the plans
submitted by the inmate for consideration and is therefore
aware of significant information such as employment plans,
residence, community and family support.
. . . .
Lastly, [Acoli] contend[s] that the Board did not consider
that [Acoli] has taken . . . "full responsibility"
for [the trooper's] death . . . . The Board . .
. conducted [Acoli's] hearing to determine his
suitability for parole. The Board had the ability to
ask [Acoli] questions and to review his case to evaluate
whether he . . . gained the problem resolution necessary to
ensure that there is not a substantial likelihood that he
would commit a crime if released on parole. The Board
determined, based on its interview [of Acoli], and its review
of the case file, that [Acoli] does not demonstrate
the insight necessary to be a viable candidate for parole
release at the present time. Although he may believe
that he has  made progress  sufficient to ready him for
parole release, the Board found otherwise.
to its December 22, 2016 written decision establishing the
180-month FET, the Board stated that Acoli "demonstrated
a lack of satisfactory progress in reducing future criminal
behavior[, ] and that therefore, pursuant to N.J.A.C.
10A:71-3.21(d), a [FET] within the statutorily provided
guidelines [was] inappropriate[.]" Moreover, in
rejecting Acoli's argument that the 180-month FET was
excessive, the Board stated:
[Acoli] continues to demonstrate no insight towards
understanding the lifestyle and behavior choices that he was
making leading up to the murder. While he states that he no
longer advocates violence, he yet cannot provide tangible
explanations as to how he has changed his behavior choices or
patterns. [Acoli] has made only negligible progress into
understanding why he chose to be a part of a violent militant
organization. He does not appear to recognize
what changes he needs to make to ensure a crime[-]free
lifestyle. Further, he seems conflicted in his
thinking and is unable to fully reconcile his behaviors and
actions involved in the time leading up to the murder, and
the murder itself. He repeatedly states that he
takes ownership and responsibility for the murder of the
trooper, but there are significant contradictions to those
statements in his further testimony before the Board.
He presents as being emotionless and lacking in
empathy and does not appear to realize the severity of
his violent actions. The Board finds that more work needs to
be done on [Acoli's] part, in order for him to undergo a
meaningful introspection into the internal and external
factors that impelled his life choices.
in its six-page December 22, 2016 notice of decision, the
[Y]ou have never before speculated as to who you believed
shot and killed the trooper, instead maintaining that you
were in an unconscious state when the act occurred.
At the [remand] hearing, you chose to deviate from your
past statements and speculated that the trooper was killed by
friendly fire. Although the ballistic evidence reveals
that could not be the case, as the trooper was shot with his
own weapon, it is disturbing that you would make such
conjecture, especially considering your assertions that you
take responsibility for the crime.
of Acoli's suitability for parole release-albeit on a
different record-returns to us on this appeal in the
aftermath of the Board's final decision.
appeal, Acoli raises the following points:
THE RECORD DOES NOT SHOW BY A PREPONDERANCE OF THE CREDIBLE
EVIDENCE THAT [ACOLI] HAS A "SUBSTANTIAL
LIKELIHOOD" OF COMMITTING FUTURE CRIME IF RELEASED.
A. IN NEW JERSEY[, ] PAROLE IS PRESUMED UPON REACHING THE
ELIGIBILITY DATE AND THE BURDEN IS ON THE STATE TO PROVE
[ACOLI] IS A RECIDIVIST.
B. THE RECORD DOES NOT SUPPORT A SHOWING THAT [ACOLI] IS
"SUBSTANTIALLY LIKELY" TO BE A RECIDIVIST.
1. THE BOARD IMPROPERLY RELIED UPON REMOTE OFFENSES AS A
BASIS FOR DENIAL OF PAROLE.
2. THE BOARD'S FOCUS ON [ACOLI'S] ALLEGED
UNWILLINGNESS TO ADMIT THE PREMEDITATED NATURE OF THE OFFENSE
DOES NOT ESTABLISH A SUBSTANTIAL LIKELIHOOD OF RECIDIVISM.
3. THE RECORD DOES NOT SUPPORT THE BOARD'S CONCLUSION
THAT [ACOLI] HAS NOT OPENLY ACKNOWLEDGED AND ADMITTED [TO]
HIS PAST ASSOCIATIONS WITH A VIOLENT POLITICAL MOVEMENT.
4. THE RECORD DOES NOT SUPPORT THE STATE'S NEW
PSYCHOLOGIST'S CONCLUSION THAT [ACOLI] HAS FAILED TO MAKE
SUFFICIENT GAINS FROM COUNSELING AND THERAPY.
5. THE BOARD'S BASIS FOR DENYING PAROLE IS SPECULATIVE
AND DOES NOT RISE TO THE LEVEL OF PROOF THAT ACOLI IS
"SUBSTANTIALLY LIKELY["] TO COMMIT FUTURE CRIME.
[ACOLI'S] RECORD WHILE INCARCERATED FOR NEARLY [FORTY]
YEARS MITIGATES AGAINST THE FINDING THAT HE IS
"SUBSTANTIALLY LIKELY" TO COMMIT FURTHER CRIMES.
narrow standard of review is critical to adjudicating
Acoli's arguments on appeal. Of course, parole
determinations are subject to judicial review. When reviewing
the Parole Board's denial of parole, we concentrate on
(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
[Trantino v. N.J. State Parole Bd. (Trantino
IV), 154 N.J. 19, 24 (1998).]
reverse an administrative agency's decision "only if
it is arbitrary, capricious, or unreasonable or [if] it is
not supported by substantial credible evidence in the record
as a whole." Henry v. Rahway State Prison, 81
N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of
Civil Serv., 39 N.J. 556, 562 (1963)).
undertake that analysis understanding the uniqueness of the
Parole Board. See Acoli II, 224 N.J. at 222-23
(explaining the specialized nature of the Parole Board). The
Legislature purposefully established the Parole Board that
collectively embodies unique and particular characteristics.
Under N.J.S.A. 30:4-123.47(a), the Board consists of a
chairperson, fourteen associate members, and three alternate
board members. Acoli II, 224 N.J. at 222. The
Governor appoints these individuals with the advice and
consent of the Senate, and selects them based on their
qualifications. Ibid. (citing N.J.S.A.
30:4-123.47(a)). Indeed, the statute requires that they be
"qualified persons with training or experience in law,
sociology, criminal justice, juvenile justice or related
branches of the social sciences." N.J.S.A.
expressly draw attention to the qualification-based
appointment of the Board members especially because here, the
Board utilized its expertise and conducted a full in-person
hearing, listened to Acoli's responses during the lengthy
hearing, and observed Acoli interact with the Board. The
Board members' individual, diverse, and combined
expertise was important, as they undertook their weighty
responsibility of deciding whether Acoli satisfied the
criteria for parole release. The Parole Board is the only
agency entrusted with the "specialized knowledge to
administer [the] regulatory scheme." Acoli II,
224 N.J. at 222.
on the diverse background of its members, the Parole Board
makes "highly predictive and individualized
discretionary appraisals." Ibid. (quoting
Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359
(1973)). The appraisals are inherently imprecise because they
are "discretionary assessment[s] of a multiplicity of
imponderables, entailing primarily what a man is and what he
may become rather than simply what he has done."
Ibid. (alteration in original) (quoting
Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 10 (1979)). "Stripped to its
essentials, a parole board's decision concerns a
prediction as to an inmate's future behavior, a
prognostication necessarily fraught with subjectivity."
Ibid. (quoting Trantino v. N.J. State Parole
Bd. (Trantino VI), 166 N.J. 113, 201 (2001))
(Baime, J.A.D., dissenting).
the subjective nature of the Board's prediction of an
inmate's future behavior, and the highly specialized
composition of the Board itself, we are not permitted to
substitute our judgment for that of the Board's. Indeed,
in the Court's remand, it stated:
By virtue of our remand, we ensure that subsequent judicial
review, if critical of the substance of that ultimate
determination by the Parole Board under the applicable
standard of review, does not impermissibly result in a
judicial substitution of a decision reposed by the
Legislature with the Parole Board. The Appellate Division
here declined to remand to the Parole Board for a full
hearing, as was requested on reconsideration by the Parole
Board. The panel, essentially, saw no point to that step,
having itself evaluated Acoli's bases for asserting that
he is ready for release and determining that there has been
no convincing reason presented to date to require his further
incarceration. That remedy basically substituted the
appellate panel's judgment for that of the agency charged
with the expertise to make such highly predictive,
individualistic determinations-the full Parole Board.
[Acoli II, 224 N.J. at 230-31.]
that Acoli is serving a sentence imposed under Title 2A, the
predecessor to the New Jersey Code of Criminal Justice, now
codified under Title 2C. The Parole Act of 1979, N.J.S.A.
30:4-123.45 to -123.79, governs Acoli's parole fitness,
and provides for parole of an inmate upon eligibility unless
a preponderance of the evidence demonstrates "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." N.J.S.A. 30:4-123.53 (amended 1997). The Board
utilized this correct standard during the remand proceedings.
the Board also complied with all other applicable law,
including N.J.A.C. 10A:71-3.11. The regulation, entitled
"Factors considered at parole hearings; adult
(a) Parole decisions shall be based on the aggregate of
all pertinent factors, including material supplied by
the inmate and reports and material[, ] which may be
submitted by any persons or agencies which have knowledge of
(b) The hearing officer, Board panel or Board shall
consider the following factors and, in addition, may
consider any other factors deemed relevant:
1. Commission of an offense while incarcerated.
2. Commission of serious disciplinary infractions.
3. Nature and pattern of previous convictions.
4. Adjustment to previous probation, parole and
5. Facts and circumstances of the offense.
6. Aggravating and mitigating factors surrounding the
7. Pattern of less serious disciplinary infractions.
8. Participation in institutional programs which could have
led to the improvement of problems diagnosed at admission or
during incarceration. This includes, but is not limited to,
participation in substance abuse programs, academic or
vocational education programs, work assignments that provide
on-the-job training and individual or group counseling.
9. Statements by institutional staff, with supporting
documentation, that the inmate is likely to commit a crime if
released; that the inmate has failed to cooperate in his or
her own rehabilitation; or that there is a reasonable
expectation that the inmate will violate conditions of
10. Documented pattern or relationships with institutional
staff or inmates.
11. Documented changes in attitude toward self or others.
12. Documentation reflecting personal goals, personal
strengths or motivation for law-abiding behavior.
13. Mental and emotional health.
14. Parole plans and the investigation thereof.
15. Status of family or marital relationships at the time of
16. Availability of community resources or support services
for inmates who have a demonstrated need for same.
17. Statements by the inmate reflecting on the likelihood
that he or she will commit another crime; the failure to
cooperate in his or her own rehabilitation; or the reasonable
expectation that he or she will violate conditions of parole.
18. History of employment, education and military service.
19. Family and marital history.
20. Statement by the court reflecting the reasons for the
21. Statements or evidence presented by the appropriate
prosecutor's office, the Office of the Attorney General,
or any ...