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Acoli v. New Jersey State Parole Board

Superior Court of New Jersey, Appellate Division

December 27, 2019

SUNDIATA ACOLI, a/k/a CLARK EDWARD SQUIRE, Appellant,
v.
NEW JERSEY STATE PAROLE BOARD, Respondent.

          Argued September 9, 2019

          On appeal from the New Jersey State Parole Board.

          Bruce 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).

          Before Judges Fasciale, Rothstadt and Moynihan (Judge Rothstadt dissenting).

          OPINION

          FASCIALE, P.J.A.D.

         In 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[1] June 21, 2017 final agency decision (final decision) denying parole and imposing a 180-month Future Eligibility Term (FET).

         At the 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.

         Our 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.

         On this 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.

         We therefore affirm.

         I.

         In 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.

         In 2010, Acoli became eligible for parole.[2] 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.

         Acoli 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.

         Acoli 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.

         The Supreme Court granted the Board's petition for certification, interpreted N.J.S.A. 30:4-123.55(f), [3] and 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 its entirety.

[Acoli II, 224 N.J. at 232.]

         On June 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.

         On June 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.

         The 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.

         In its 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.

         In its 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 final decision.

         As to 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).

         In the 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 partially quoted:

[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 . . . N.J.A.C. 10A:71-3.11.
. . . .
[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.

[(Emphasis added).]

         Referring 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.

[(Emphasis added).]

         Moreover, in its six-page December 22, 2016 notice of decision, the Board stated:

[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.

[(Emphasis added).]

         Consideration 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.

         II.

         On this appeal, Acoli raises the following points:

[POINT I]
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.
[POINT II]
[ACOLI'S] RECORD WHILE INCARCERATED FOR NEARLY [FORTY] YEARS MITIGATES AGAINST THE FINDING THAT HE IS "SUBSTANTIALLY LIKELY" TO COMMIT FURTHER CRIMES.

         Our 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 three inquiries:

(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.

[Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998).]

         We will 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)).

         We 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. 30:4-123.47(a).

         We 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.

         Based 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).

         Given 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.]

         We note 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.

         Here, 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 inmates," states:

(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 the inmate.
(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 incarceration.
5. Facts and circumstances of the offense.
6. Aggravating and mitigating factors surrounding the offense.
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 parole.
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 eligibility.
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 sentence imposed.
21. Statements or evidence presented by the appropriate prosecutor's office, the Office of the Attorney General, or any ...

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