                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3623-14T1
                                                  A-2478-16T1

KEVIN STOUT,

        Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

     Respondent.
_______________________________

              Submitted (A-3623-14) September 28, 2016 –
              Remanded November 15, 2016

              Before Judges Alvarez and Accurso.

              Argued (A-3623-14 and A-2478-16) March 12, 2018 -
              Decided July 23, 2018

              Before Judges Accurso, O'Connor and Vernoia.

              On appeal from the New Jersey State Parole
              Board.

              Pierre Chwang argued the cause for appellant
              (Rutgers Constitutional Rights Clinic,
              attorneys; Ronald K. Chen, on the brief;
              Kevin Stout, on the pro se brief).

              Christopher C. Josephson, Deputy Attorney
              General, argued the cause for respondent
              (Gurbir S. Grewal, Attorney General,
              attorney; Melissa Dutton Schaffer and Lisa
              A. Puglisi, Assistant Attorneys General, of
          counsel; Christopher C. Josephson, on the
          briefs).

PER CURIAM

    In these back-to-back cases, which we have consolidated for

purposes of this opinion, Kevin Stout appeals from the February

25, 2015 final decision of the New Jersey State Parole Board

denying him parole (A-3623-14), and the Board's January 25, 2017

final decision again denying parole and establishing a future

parole eligibility term (FET) of sixty months (A-2478-16).      For

reasons we explain, we dismiss the appeal in A-3623-14 as moot

and affirm the decision in A-2478-16 denying parole and

establishing a sixty-month FET.

    This case has a protracted and unusual procedural history.

The facts, however, are easily summarized.   In the course of a

rapidly escalating series of violent armed robberies, Stout shot

a sixty-four year old shopkeeper in the face, killing her, while

robbing a small, neighborhood variety store in the middle of the

afternoon.   He was nineteen and on parole when he committed the

murder.   He was not apprehended until a month later, when

engaged in yet another armed robbery, this time of a laundromat.

Investigation reports note Stout was struggling with an officer

and trying to get a gun from his pocket when another officer

intervened and helped subdue Stout.   The gun the officers


                                  2                          A-3623-14T1
removed from Stout's pocket was "fully loaded and the hammer

cocked."

    Stout was convicted by a jury in 1982 of the murder of the

shopkeeper and sentenced to life imprisonment with a minimum

term of twenty-five years, consecutive to a ten-year term he was

then serving for the armed robbery of the laundromat.       During

his first eighteen years in prison he accumulated a disciplinary

record of forty-seven prohibited acts, eleven of them asterisk

infractions.    See N.J.A.C. 10A:4-4.1.     He was also convicted in

1997 of possession of a controlled dangerous substance while in

prison, for which he received a five-year sentence.      Stout's

last disciplinary infraction was in November 2000, nearly

eighteen years ago.   He is incarcerated at Northern State Prison

where he maintains gang minimum custody status.       See N.J.A.C.

10A:9-4.3(d).

    Stout first became eligible for parole in 2009 after nearly

thirty years in prison.    The Parole Board denied parole and set

a fifteen-year (180-month) FET.       We affirmed the denial of

parole in 2011 under the standard of the 1979 Parole Act

applicable in Stout's case, that parole must be granted unless

shown by a preponderance of the evidence that there is a

substantial likelihood he will commit another crime if released.

N.J.S.A. 30:4-123.53(a) (1979), amended by L. 1997, c. 213, § 1;

                                  3                           A-3623-14T1
N.J.S.A. 30:4-123.56(c) (1979), amended by L. 1997, c. 213, § 2;

see In re Trantino (Trantino VI), 166 N.J. 113, 126 (2001)

(explaining application of the 1979 Act).

      We reversed the fifteen-year eligibility term, however,

noting it "substantially exceeded the presumptive twenty-seven

month limit by more than twelve years."   Stout v. N.J. State

Parole Bd., No. A-5064-09 (App. Div. June 7, 2011) (slip op. at

8).   We found the Board's reasons, that Stout was "unable to

identify the causes of [his] violent behavior"; had "failed to

develop adequate insight into [his] criminal personality

characteristic"; "failed to appropriately and adequately address

a contributing factor (substance abuse) of [his] violent

behavior"; "committed a new criminal offense during [his]

incarceration"; and "continued [his] anti-social, maladaptive

behavior during [his] incarceration by committing numerous

serious institutional infractions," "unpersuasive to warrant the

imposition of an FET nearly seven times the presumptive term."

Id. at 8-10.   Although acknowledging the Board's findings

"clearly warrant serious notice," we concluded an FET of fifteen

years was "manifestly excessive, even in light of the

confidential materials" available to the Board, and "did not

properly account for the temporal remoteness of Stout's



                                4                            A-3623-14T1
criminality and prohibited acts, the last occurring in 1997 and

2000 respectively."     Id. at 10.

    On remand in 2012, the Board re-imposed the fifteen-year

FET "employing precisely the same factors it employed in 2008."

Stout v. N.J. State Parole Bd., No. A-5695-11 (App. Div. Jan. 7,

2014) (slip op. at 3).     We reversed in 2014.   Noting the Board

was not free "to simply reinstate its prior decision"

establishing an FET we had deemed "manifestly excessive," we

again remanded to the Board "to impose an appropriate term in

conformity with law."     Id. at 3, 6.

    A three-member panel of the Board reconsidered the fifteen-

year FET for the second time in February 2014, reducing it by

five years.   Upon application of work and minimum custody

credits, the then ten-year FET, begun on Stout's first

eligibility date in 2009, was scheduled to expire on July 20,

2014.   The full Board affirmed the five-year reduction of

Stout's FET ten days after it had expired.     Stout v. N.J. State

Parole Bd., Nos. A-0034-14 and A-3623-14 (App. Div. Nov. 15,

2016) (slip op. at 5).     As we explained on Stout's appeal of

that decision:

          Because Stout was already again eligible for
          parole at the time the Board rendered its
          final decision on remand, a two-member Board
          panel considered his case again on July 25,
          2014, using an updated confidential

                                     5                       A-3623-14T1
         psychological assessment. The members
         split, one voting that Stout be paroled and
         the other that parole be denied.
         Accordingly, pursuant to N.J.A.C. 10A:71-
         1.3(e), a third member was added, and on
         September 24, 2014, the now three-member
         panel voted to deny parole and set a thirty-
         six-month FET. Stout appealed its decision
         to the full Board, which affirmed the
         panel's decision on February 25, 2015.

         [Ibid.]

    We considered Stout's appeals from the Board's July 30,

2014 final decision on second remand establishing the ten-year

FET and its February 25, 2015 final decision denying parole and

imposing a thirty-six-month FET together in the fall of 2016.

By that time, the Board's February 2015 thirty-six-month FET had

also expired, and we were advised the Board had recently again

denied Stout parole and established a sixty-month FET, which was

not then final pending administrative appeal.   Id. at 2.   As

Stout had already served out the reduced ten-year FET and the

three-year FET the Board subsequently imposed on expiration of

that ten-year term, we determined there was no effective relief

we could render regarding the FET we remanded to the Board in

2011 and 2014 and dismissed that matter as moot.   Id. at 6.

    Although acknowledging the same might be said of Stout's

appeal from the Board's February 25, 2015 decision, we declined

to dismiss it because even though the FET had expired, we had


                               6                            A-3623-14T1
yet to consider the Board's decision to deny Stout parole at

that time.   Ibid.   Having been advised in response to our

inquiry that the Board had again denied Stout parole and

established a five-year (sixty-month) FET, which began to run on

December 3, 2015, subject to internal appeal and thus not yet

final, we deferred decision on the Board's February 25, 2015

decision to deny parole for consolidation with the matter then

pending before the Board upon the filing of a notice of appeal

in that case.   Id. at 6-7.   Our aim was to avoid continuing a

cycle that had obviously "thwarted effective appellate review of

this case for several years."   Id. at 7.

     Although we had intended to hear both cases last term, they

were not ready for submission to the court until last fall.

After reviewing the briefs, we determined, sua sponte, to

appoint counsel for Stout to assist him in presenting the issues

raised by the appeals.   Accordingly, we appointed Ronald K. Chen

of the Rutgers Constitutional Rights Clinic to represent Stout,

permitted the filing of supplemental briefs and listed the

appeals for oral argument.1   We now have before us, as counsel



1
   We note here our gratitude to Professor Chen for accepting
appointment as counsel for Stout. We appreciate his
professionalism and zealous advocacy and that exhibited by the
students he supervised who participated in presenting these
appeals, including Mr. Chwang, who argued the cause.

                                 7                          A-3623-14T1
for Stout describes them, "two separate denials of parole on two

non-identical (but functionally overlapping) administrative

records," presenting the same issue, that is, whether a

preponderance of the credible evidence in the record supports

the Parole Board's determination that there is a substantial

likelihood that Stout will commit another crime if released on

parole.

    The Parole Board documents its decisions using a checklist

of "mitigating factors" and "reasons for denial."         In its

September 24, 2014 decision denying Stout parole, the Board

panel checked off the following mitigating factors:

             Participation in programs specific to
              behavior.

             Participation in institutional programs.

             Average to above average institutional
              reports.

             Institutional adjustment has been favorable.
              (Last infraction: 11/11/00)

             Attempt made to enroll and participate in
              programs but was not admitted.

             Minimum custody status achieved/maintained.
              G[ang] M[inimum]

             Commutation time restored.

The Board checked off the following reasons for denial:

             Prior criminal record noted.

                                   8                               A-3623-14T1
          Nature of criminal record increasingly more serious.

          Current opportunity on parole revoked for the
           commission of new offenses.

          Prior opportunities on probation/parole have failed to
           deter criminal behavior.

          Prior opportunity on parole has been violated in the
           past.

          Prior incarceration did not deter criminal behavior.

          Institutional infractions serious in nature, resulting
           in loss of commutation time; confinement in detention
           and Administrative Segregation. Last infraction
           11/11/00.

          Insufficient problem resolution. Specifically, Lack
           of insight into criminal behavior. As demonstrated by
           Panel interview; Documentation in case file and
           Confidential material/professional report relied on.

          Commission of a crime while incarcerated.

          Risk assessment evaluation.   LSI-R [Level of Service
           Inventory-Revised score] 24

    In its February 25, 2015 decision affirming the denial of

Stout's parole, the Board added the following narrative remarks:

                The Board finds that the Board panel
           conducted your hearing to determine your
           suitability for parole. The Board panel had
           the ability to ask you questions and review
           your case in order to evaluate whether you
           have gained the problem resolution necessary
           in order to ensure that you will abide by
           conditions of parole if released. The Board
           panel determined, based on your interview
           and its review of the file, that you do not
           demonstrate the insight necessary in order
           to be a viable candidate for parole release.

                                9                          A-3623-14T1
           Although you may believe that you have made
           strides in this area, and feel that you
           should have been paroled because there are
           no new negative factors in your case, the
           Board panel found otherwise. Based on its
           review, the Board concurs with the Board
           panel's determination and, therefore, your
           contention is without merit.

               . . . .

                Based upon consideration of facts cited
           above, the Board finds that the Board panel
           has considered the aggregate of information
           pursuant to N.J.A.C. 10A:71-3.11 and fully
           documented and supported its decision
           pursuant to N.J.A.C. 10A:71-3.18(f).
           Additionally, in assessing your case, the
           Board concurs with the determination of the
           Board panel that a preponderance of the
           evidence indicates that there is a
           substantial likelihood that you would commit
           a crime if released on parole at this time.
           Accordingly, the Board affirms the Board
           panel's September 14, 2014 decision to deny
           parole and establish a thirty-six (36) month
           future eligibility term. You will be
           scheduled for a subsequent parole release
           hearing when it is appropriate.

    In its September 15, 2016 Notice of Decision denying Stout

parole, the full Board checked off the following mitigating

factors:

          Infraction free since last panel.

          Participation in programs specific to
           behavior.

          Participation in institutional programs.




                               10                         A-3623-14T1
          Institutional reports reflect favorable
           institutional adjustment.

          Positive adjustment to TC program/
           Assessment Center/ RCRP.

          Minimum custody status achieved/maintained.

The Board checked off the following reasons for denial:

          Serious nature of offenses.

          Prior offense record is extensive.

          Offense record is repetitive.

          Nature of criminal record increasingly more serious.

          Committed to incarceration for multiple offenses.

          Current opportunity on parole revoked for the
           commission of new offenses.

          Prior opportunities on probation/parole have failed to
           deter criminal behavior.

          Prior opportunity on probation/parole has been
           violated in the past for technical violation(s).

          Prior incarceration did not deter criminal behavior.

          Institutional infractions serious in nature, resulting
           in loss of commutation time; confinement in detention
           and/or Administrative Segregation. Last infraction
           11/11/2000 *204.

          Insufficient problem resolution. Specifically, lack
           of insight into criminal behavior.

           Other: Inmate presents as a troubled individual who
           does not understand his past violent decision-making.
           Further, the Board finds the inmate has only a
           superficial understanding [of] the triggers to his

                               11                          A-3623-14T1
           addiction[,] which he claims was the driving force to
           his criminality and affected him during his
           incarceration. Inmate claims he is matured but
           contrary to that assertion was a presentation [rife]
           with uncertain and unclear answers resulting in no
           substantive insight articulated.

           As demonstrated by interview; documentation in case
           file and confidential material/professional report.

          Risk assessment evaluation.   LSI-R [Level of Service
           Inventory-Revised score] 26

    In its January 25, 2017 decision affirming Stout's denial

of parole, the Board added the following narrative remarks:

                In your appearance before the Board,
           the Board asked you questions and reviewed
           your case in order to evaluate whether you
           have gained the problem resolution necessary
           in order to ensure that you will abide by
           the law if released. Additionally, 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
           determined, based on your interview and its
           review of the file, that you do not
           demonstrate the insight necessary in order
           to be a viable candidate for parole release.
           Although you may believe that you have made
           strides in this area, the Board finds
           otherwise. Specifically, the Board finds
           that after thirty-five (35) years of
           incarceration, you present as superficial in
           your insight and are unable to recognize the
           root causes of your violent behavior other
           than to infer that you were influenced by
           others and were attempting to "fit in" with
           your peers. The Board further finds that
           your unspecific answers are demonstrative of
           your failure to fully understand the
           severity of your violent actions, and that
           you are ill-equipped for parole release and

                               12                          A-3623-14T1
         in need of additional programming and
         counseling. The Board, therefore, finds
         your contention that the Board unfairly
         relied upon the same factors as it has
         relied upon in the past to be without merit.

              . . . .

              Based upon consideration of the facts
         cited above, the Board finds that it has
         considered the aggregate of information
         pursuant to N.J.A.C. 10A:71-3.11 and fully
         documented and supported its decision
         pursuant to N.J.A.C. 10A:71-3.20(e).
         Therefore, the Board affirmed its
         determination rendered on July 20, 2016 that
         a preponderance of the evidence indicates
         that there is a substantial likelihood that
         you would commit a crime if released on
         parole at this time; that parole be denied;
         and that a future eligibility term
         established pursuant to N.J.A.C. 10A:71-
         3.21(a), (b) and (c) is clearly
         inappropriate due to your lack of
         satisfactory progress in reducing the
         likelihood of future criminal behavior. The
         Board further affirmed its determination
         rendered September 15, 2016 to establish a
         60 month future eligibility term pursuant to
         N.J.A.C. 10A:71-3.21(e). You will be
         scheduled for a subsequent parole hearing
         when it is appropriate.


    Stout appeals, contending the Parole Board abused its

discretion by failing to sufficiently articulate its findings,

thus precluding meaningful judicial review, that it failed to

consider how long ago he committed his violent crimes and that

its finding he "lacked 'insight' into his prior criminal

behavior thirty-seven years ago applies an amorphous standard

                              13                           A-3623-14T1
that is not related to the current risk of recidivism."    Stout

also contends the Board has acted arbitrarily and capriciously

in "repeatedly impos[ing] excessive future eligibility terms" on

him.   We reject those arguments.

       We start our analysis understanding the Parole Board's

decisions are highly "individualized discretionary appraisals,"

Trantino VI, 166 N.J. at 173 (2001) (quoting Beckworth v. N.J.

State Parole Bd., 62 N.J. 348, 359 (1973)), entitled to both a

presumption of validity, see In re Vey, 272 N.J. Super. 199, 205

(App. Div. 1993), aff'd, 135 N.J. 306 (1994), and our deference

to "its expertise in the specialized area of parole

supervision," J.I. v. N.J. State Parole Bd., 228 N.J. 204, 230

(2017).    We may not upset the determination of the Parole Board

absent a showing that it was arbitrary, capricious, or

unreasonable; that it lacked fair support in the evidence; or

that it violated legislative policies.    Trantino v. N.J. State

Parole Bd., 154 N.J. 19, 24-25 (1998).    The burden is on the

inmate to show the Board's actions were unreasonable.     McGowan

v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div.

2002).

       Applying those standards here, notwithstanding our prior

misgivings about the Parole Board's imposition of FETs in this

matter, we are satisfied the Board's most recent denial of

                                14                          A-3623-14T1
parole was based on a proper analysis of the factors it deemed

relevant and was supported by sufficient credible evidence in

the record.   We likewise find no basis to overturn the Board's

sixty-month FET.

    In his supplemental brief, Stout contends the factors

relied on by the Parole Board to deny him parole "can be grouped

into two general categories" consisting first of his "prior

criminal history and early record of institutional infractions,"

which he does not dispute, but notes occurred either on or

before the date of the murder in 1980, or else more than

seventeen years ago during his incarceration, and second, of the

Board's finding "he had not demonstrated sufficient 'insight

into [his] violent criminal behavior'" which led the Board to

conclude he "had 'insufficient problem resolution' skills."

    He argues the Board "failed to explain why the most recent

17 year record of completely acceptable behavior," combined with

the mitigating factors the Board found, including participation

in institutional programs and those targeted to his specific

behavior, average to above average institutional reports

reflecting favorable institutional adjustment and attaining gang

minimum custody status, "are not more reliable predictors of the

current likelihood of reoffending, than those factors it cited

that are qualitatively and quantitatively more remote in time

                               15                          A-3623-14T1
and circumstance."   He contends the Board's "failure to address

through articulated analysis the logical inference that the most

recent 17 year record of commendable conduct . . . is less

indicative of the current risk of recidivism that he presents,

compared to conduct that occurred up to 37 years ago, is a fatal

deficiency" in the findings.

    Those arguments, in our view, would have more resonance

were we looking only at the Board's February 2015 affirmance of

the split panel's vote to deny Stout parole.    The September 24,

2014 notice of the panel decision is devoid of any comment,

consisting only of a series of checkmarks noting the mitigating

factors the panel found and its reasons for denying parole.

Although that may suffice in some circumstances, we could not

find it would here in light of the seriousness of Stout's crimes

and his mixed record in prison.     The Board's narrative in its

February 2015 final decision offers no insight into the question

Stout poses in his supplemental brief, namely, why did the

majority of the three-member panel find Stout's most recent

seventeen-year commendable record a less "reliable predictor[]

of [his] current likelihood of reoffending" at age fifty-seven

than the crimes he committed when he was nineteen and a drug

addict, even taking into account Stout's risk assessment



                               16                           A-3623-14T1
evaluation score of twenty-four, indicating a medium risk of

recidivism, and why did the full Board affirm that finding.

    Accordingly, were we looking only at the Board's 2015

decision to deny Stout parole, we would vacate that decision and

remand for a statement of reasons explaining the Board's

findings.   See Kosmin v. New Jersey State Parole Bd., 363 N.J.

Super. 28, 40 (App. Div. 2003).     But Stout's appeal of that 2015

decision, which we deferred deciding in response to his request

that we take judicial notice the Board had again denied him

parole in July 2016, is now certainly moot in light of the Board

having decided to deny parole following the 2016 hearing before

the full Board.   A remand to the Board to explain a decision

superseded by one which we also review here would be pointless.

Accordingly, we dismiss the appeal in A-3623-14 as moot.      See

Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting Deutsche Bank

Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App.

Div. 2001)) (explaining an "issue is 'moot when our decision

. . . , when rendered, can have no practical effect on the

existing controversy'").

    The Board's Notice of Decision following Stout's parole

hearing before the full Board does not suffer the same

deficiencies as the Notice of Decision issued by the Board panel

in September 2014.   As we noted, the Board included in its

                               17                           A-3623-14T1
September 15, 2016 Notice of Decision a record of its

impressions of Stout following the full Board hearing, that he

presented as "a troubled individual who does not understand his

past violent decision-making" and "has only a superficial

understanding [of] the triggers to his addiction[,] which he

claims was the driving force to his criminality and affected him

during his incarceration."

    Moreover, the Board provided Stout a detailed seven-page

decision explaining its reasons for imposing a sixty-month FET

following the July 2016 full Board hearing.   In that decision,

the Board reviewed Stout's juvenile record, which began at age

fourteen when he was arrested, and later adjudicated delinquent,

for malicious damage, followed by adjudications for possession

of marijuana, breaking and entering – larceny, breaking and

entering, assault and battery, possession of stolen property,

trespassing and attempted breaking and entering.   Stout was

twice afforded juvenile parole and twice returned as a parole

violator.

    Following his eighteenth birthday, Stout was convicted of

robbery and sentenced to an indeterminate term of eight years in

the custody of the Department of Corrections.   He was paroled a

year later.   Two months after being released on parole, Stout

murdered the shopkeeper and was apprehended a month later in the

                               18                           A-3623-14T1
course of the armed robbery of the laundromat.   The Board also

noted that while in prison, Stout was indicted in 1995 for

possession of CDS, possession of CDS with intent to distribute,

distribution of CDS and conspiracy, eventually entering a

negotiated plea to possession.

    In laying out its reasons for the sixty-month FET, the

Board noted the serious nature of the offense, that Stout's

offense history was both extensive and repetitive, his criminal

record was increasingly more serious, he was incarcerated for

multiple offenses committed on different occasions, that he was

on parole when he committed the murder, had previously violated

parole and that both incarceration and opportunities for

community supervision failed to deter his criminal behavior.

The Board also noted that although Stout's last infraction, *204

use of prohibited substances, was almost eighteen years ago, the

number and seriousness of his infractions led it to conclude his

"overall institutional record is representative of a disruptive

and anti-social individual."

    In explaining its finding that Stout lacked insight into

his violent criminal behavior and minimized his anti-social

decision-making, the Board wrote:

              The [hearing the] Board conducted on
         July 20, 2016, marked the third parole
         eligibility hearing conducted in your case.

                                 19                         A-3623-14T1
The record reflects that at the age of
nineteen (19) you committed the offense of
Murder. The murder involved you shooting an
elderly woman in the face during the course
of a robbery. Of note is the fact that you
were on parole for a prior robbery when you
committed murder. Additionally, you were
not arrested immediately after killing the
victim and you committed an additional
robbery roughly four (4) weeks later.

     You have since been incarcerated for
thirty-five (35) years and are currently
fifty-four (54) years of age. The Board
conducted a hearing in your case to
determine your suitability for parole
release at the current time and assess
whether there is a substantial likelihood
that you would commit a new criminal offense
if released on parole. To make such a
highly individualized discretionary
appraisal in your case, the Board engaged
you in discussion for an extended period of
time, nearly three (3) hours. The Board
asked questions regarding your current state
of mind and your view and perception of the
type of person you believe you were in the
years leading up to the present
incarceration. You were also asked about
insight that you may have gained from the
programming/counseling you have thus far
completed during your incarceration. The
Board considered your understanding of your
past criminal conduct and determined whether
you possess the ability to recognize and
appropriately process factors that could
affect you to behave in a violent and
criminal manner in the future. The manner
in which you will conduct yourself and
address/process yourself if a member of
society was an important aspect of the
Board's decision in assessing the
possibility of future criminal behavior on
your part.


                    20                         A-3623-14T1
     The Board was not impressed with the
presentation that you put forth to them.
Much like previous hearings, the insight you
articulated was extremely superficial and
demonstrated that you do not possess a deep
thinking into you[r] past actions and have
not yet begun a substantive introspection
into why you chose to behave in a violent
manner during your formative years. The
Board finds that you do not fully understand
why you have behaved in a criminal manner
leading to the murder regardless of the
programming and counseling you have
completed. At the hearing you were asked
multiple times why you chose to commit a
violent murder during the course of a
robbery, while on parole for a previous
robbery. You described yourself as a "lost
person" that made "bad choices" and that you
were a "drug addict." Regarding the violent
behavior you exhibited in the years prior to
the murder, you indicated that you were
"trying to fit in" that you were affected by
"peer pressure" and that you were "trying to
be something that you weren't." You did not
expound in any greater detail on these
details you provided. Later in your hearing
you stated your criminal behaviors were not
due to your upbringing and that you believe
you behaved as a result of "the choices of
my friends." Asked about your last
infraction, the use of heroin in 2000, you
stated that you were "dealing with my
reality . . . the demons in prison." You
admitted that you were an addict and would
use CDS three (3) to (4) times per week.
Asked what your triggers are for a possible
drug relapse you stated "the smell of
heroin," "missing my family" and "being
around people who get high."

     The Board would   expect that after years
of incarceration and   program participation
you would be able to   express and articulate
yourself in a manner   that would demonstrate

                       21                        A-3623-14T1
that you understand your past actions and
decision making and that you are prepared to
re-integrate yourself into society crime
free. Asked about insight you believe you
have gained from programming, you noted
Focus On the Victim and Thinking for a
Change. Asked to articulate what
specifically you learned from the programs,
you stated "I have matured," "I am not the
same person" and that you have "finally
arrived as a human being." Again, you did
not further expound upon these non-specific
answers. That was particularly concerning
taking into consideration you self-praised
your perceived "maturity" yet you committed
a CDS offense as an inmate at the age of
thirty-four (34). As noted the Board found
such answers to be superficial and clearly
not representative of someone with insight
and instead representative of someone still
searching themselves as to why they behaved
in the violent manner they have. You
referenced numerous times that you believe
your behaviors were to fit in and that
others influenced your actions. However,
you presented as not understanding as to why
your desire to fit in socially impelled you
to behave in an extremely violent manner.

     Overall, the Board finds that you
continue to be only superficial in your
understanding of your past behaviors and
unaware as to why you led a life of crime,
leading to the murder. More work needs to
be done by you, through programming and
counseling, to gain an introspection as to
why you have chosen to act and react in the
manner you have. After over three (3)
decades in prison you present as someone who
truly does not understand the severity of
his [crimes]. It is clear you must address
the issues described within this Notice with
further counseling in an effort to gain
insight into your criminal decision-making.
Therefore, the Board finds that you require

                    22                         A-3623-14T1
         additional time to address deficiencies in
         your lack of insight as evidenced by your
         presentation and non-specific answers you
         provided to Board questioning.

    Stout in his supplemental brief argues "insight" is not

among the twenty-three factors listed in N.J.A.C. 10A:71-

3.11(b), the regulation that guides the Board in assessing an

inmate's likelihood of recidivism.   He complains "this malleable

and vague concept is too amorphous to allow meaningful judicial

review," and notes "a number of obvious reasons, unrelated to

current propensity to reoffend, why an inmate in his mid-50s

would have difficulty articulating the motivating causes for his

actions decades before when he was a 19 year old drug addict."

Stout argues we should reject the Board's reliance on "the

elastic concept of lack of 'insight'" into prior criminal

behavior as predictive of an inmate's current propensity to

reoffend as ad hoc rule-making in violation of Metromedia, Inc.

v. Dir., Div. of Taxation, 97 N.J. 313, 331-32 (1984).   We

reject those arguments as incompatible with the Legislature's

delegation to the Parole Board.

    We have already here acknowledged that the Board's reliance

on an inmate's "lack of insight into his violent criminal

behavior" untethered to specific facts would likely be an

insufficient basis to support denial of parole.   But that is not


                              23                            A-3623-14T1
to say that it is insignificant to the Board's assessment of an

inmate's propensity to further criminality.   An inmate's own

understanding or insight into the reasons for his violent

criminal behavior figures into at least three of the factors

included in N.J.A.C. 10A:71-3.11(b):   (11) Documented changes in

attitude toward self or others, (12) Documentation reflecting

personal goals, personal strengths or motivation for law-abiding

behavior and (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.

    Here, the Board explained in considerable detail Stout's

inability to identify and articulate the underlying reasons for

his having become entrenched, beginning at age fourteen, in a

life of crime, with no apparent appreciation or regard for the

consequences of his choice for himself or others.   Neither

incarceration nor parole had any apparent effect on his conduct.

Peer pressure and falling in with the wrong crowd would hardly

appear an adequate explanation for the brutal and callous

killing of an elderly shopkeeper not resisting his efforts to

rob her small variety store in broad daylight.   Moreover, his

conviction and sentence to life in prison does not appear to

have altered his outlook, as his forty-seven disciplinary

                              24                            A-3623-14T1
infractions committed during his first twenty years in prison

attest.   While no longer apparently using drugs, he acknowledged

"the smell of heroin" or "being around people who get high,"

were relapse triggers for him, leaving the Board in doubt of his

ability to remain drug-free if paroled.    Given Stout's claim

that his crimes were driven by addiction, the Board had good

reason to be concerned by those answers.

    The Parole Board is charged "with the difficult and

sensitive task of evaluating the advisability of parole

release."   In re Hawley, 192 N.J. Super. 85, 92-93 (App. Div.

1983) (quoting Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 10 (1979)), aff'd 98 N.J. 108 (1984).       "The

decision turns on a 'discretionary assessment of a multiplicity

of imponderables, entailing primarily what a man is and what he

may become rather than simply what he has done.'"    Greenholtz,

442 U.S. at 10 (quoting Sanford H. Kadish, The Advocate and the

Expert — Counsel in the Peno-Correctional Process, 45 Minn. L.

Rev. 803, 813 (1961)).   We are in no position to second-guess

the Board's decision to weigh more heavily Stout's crimes and

poor adjustment to prison in assessing his prospects for

recidivism than his recent good behavior in light of his

inability to offer the Board any greater insight into his

motives for either.

                               25                           A-3623-14T1
    As our Supreme Court has recently noted, "[s]tripped to its

essentials, a parole board's decision concerns a prediction as

to an inmate's future behavior, a prognostication necessarily

fraught with subjectivity."    Acoli v. N.J. State Parole Bd., 224

N.J. 213, 222 (2016) (quoting Trantino VI, 166 N.J. at 201

(Baime, J.A.D. (temporarily assigned), dissenting)).    As Judge

Baime observed, "[t]he aims of punishment are several, but the

hope is that the sentence, mild or severe, will reshape the

offender."    Id. at 216 (internal citation omitted).   We are

satisfied there is sufficient credible evidence in the whole

record to support the Board's finding that incarceration has not

reshaped Stout and that there exists a substantial likelihood he

would commit another crime if released on parole at this time.

    We likewise find no merit in Stout's argument that the

Board's decision to establish a sixty-month FET was arbitrary

and capricious.    N.J.A.C. 10A:71-3.21(d) permits the Board to

impose an FET that differs from the presumptive schedule if that

schedule is clearly inappropriate as a result of the inmate's

lack of progress in reducing the likelihood of future

recidivism.   In imposing an FET in excess of the presumptive

term, the panel must consider the factors enumerated in N.J.A.C.

10A:71-3.11 that pertain to eligibility for parole.     The Board's

decision makes clear it did so here.   Further, the Board

                                26                          A-3623-14T1
established the term understanding it would be reduced by

commutation, earned work and minimum custody credits.   Counsel

for the Parole Board has advised that application of those

credits in Stout's case will reduce his sixty-month FET to

thirty-eight months.

    We find none of petitioner's additional arguments to be of

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

    Affirmed.




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