SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1131- 20 HORACE COWAN, Petitioner-Appellant,

v. NEW JERSEY STATE PAROLE BOARD, Respondent-Respondent.

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Submitted December 12, 2023

– Decided January 25, 2024 Before Judges Whipple and Enright. On appeal from the New Jersey State Parole Board. Horace Cowan, appellant pro se. Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorn ey General, of counsel; Christopher C. Josephson, Depu ty Attorney General, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1131

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Hor ace Cowan, an inmate at East Jersey State Prison, a ppeals from the November 18, 2020 final agency decision (FAD) denyi ng him parole and imposing a 200-month future eligibility term (FET). On February 18, 1990, Cowan shot an individual and fled the scene. He was arrested and charged with murder, possession of a weapon for an unlawful purpose, possession of a sawed-off shotgun and hind ering apprehension or prosecution. In 1991, while awaiting trial at Monm outh County Jail for the 1990 shooting, Cowan, assi sted by two other inmates, hit a corrections office r, tied him up and proceeded to escape the jail through a w indow. For the 1990 shooting, Cowan was convicted of aggra vated manslaughter, possession of a weapon for an unlawful purpose and possession of a sawed-off shotgun. He was sentenced to an aggregate life term, with a mandatory minimum of twenty-five years. As to the county jail incident, Cowan pled guilty t o conspiracy to commit aggravated assault, criminal restraint, and escape. He was sentenced to an aggregate term of ten years with a mandatory minimu m of five years, consecutive to the manslaughter sentence. In total , Cowan is serving a custodial sentence of life imprisonment with a mandatory mini mum of thirty years for aggravated manslaughter, possession of a weapon for an unlawful purpose,3 A- 1131

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possession of a sawed-off shotgun, conspiracy to co mmit aggravated assault, criminal restraint, and escape. During his incarceration, Cowan has committed twent y-one institutional disciplinary infractions and lost 725 days of commu tation credits due to his infractions. His last disciplinary infraction occu rred on August 22, 2018, for refusing to accept a work/housing assignment. On February 19, 2020, Cowan became eligible for par ole. The Parole Board (Board) held an initial hearing on November 8 , 2019 , and referred the matter to a Board panel. On January 2, 2020, the T wo Member panel denied parole due to: facts and circumstances of the offen se; his extensive prior offense and incarceration record; his offenses during proba tion; the lack of deterrence of criminal behavior by prior incarcerations; his i nstitutional disciplinary infraction; lack of proper problem resolution; and lastly, his risk of recidivism. The Two Member Board Panel found the following miti gating factors: opportunities on community supervision committed wi thout violation; participation in programs specific to behavior; fav orable institutional adjustment; and attempt to enroll and participate i n programs. The Two Member panel's January 2, 2020 determinatio n to deny parole was then referred to a Three Member Board Panel for the establishment of an4 A- 1131

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FET. On May 6, 2020, the Three Member panel establ ished a 200-month FET. The panel explained its reasoning in a ten-page decis ion, relying on much of the same factors discussed and found by the Two Member panel. Cowan appealed to the full Board. The full Board issued its FAD on November 18, 2020, affirming the 200- month FET and denial of parole, finding no merit to Cowan's challenges. Thi s appeal followed.
Our review of

final decisions of the Board is limited. Malacow v. N.J. Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018)

. The Board's decisions, like those of

other administrative agencies, will not be reversed unless they are "arbitrary, capricious or unreasonable or [are] not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81
N.J. 571, 579 (1980). This limited review of parole determinations accords agency action a presump tion of validity and reasonableness. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)

. The burden is on the challenging party to show the Board's actions were unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304

- 05 (App. Div. 1993)

. Pursuant to N.J.S.A. 30:4 -123.53(a), the Board should generally grant parole requests for release on an inmate's parole d ate unless it can be shown by5 A- 1131

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a preponderance of the evidence that there is an in dication the inmate failed to cooperate in his or her rehabilitation or there is a "reasonable expectation that the inmate will violate conditions of parole." In determining Cowan should not be released on parole, the Board considered both mi tigating and aggravating factors. The Board noted Cowan's criminal history was extensive, and his prior experiences with the probation system did not deter him from other criminal behavior. The Board also considered Cowan's insuff icient problem resolution skills and lack of insight into his own behavior. As such, the Board considered all the factors of Co wan's criminal history and twenty-one infractions while incarcerated. The refore, there was sufficient evidence to support the reasons the Board gave to d eny parole. Thus, the Board, in finding that the record demonstrated a potential for recidivism, was well within its discretion to deny Cowan parole. Cowan argues the imposition of a 200-month FET is a rbitrary. The standard FET is twenty-seven months, but pursuant t o N.J.A.C. 10A:71-3.21(c), can be increased or decreased up to nine months if other characteristics of the inmate warrant such adjustment. However, an FET ca n be exceeded if it is "clearly inappropriate due to the inmate's lack of satisfactory progress in reducing the likelihood of future criminal behavior ." N.J.A.C. 10A:71-3.21(d).6 A- 1131

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The review of an FET also focuses on the likelihood of recidivism. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 2002). The imposition of the 200-month FET was not arbitra ry, capricious, or unreasonable because the decision is supported by s ufficient credible evidence on the record. R. 2:11 -3(e)(1)(D). The Board in its detailed ten-page de cision outlined all the reasons and considerations leading to the 200-month FET, noting Cowan lacked insight into his criminal behavior and committed twenty-one infractions, eight of which were serious in nature. The most recent infractions occurred in 2018, for disruption, fighting, and rej ecting work assignments. The Board found Cowan needed to "develop a better u nderstanding to the dynamics of [his] personality defects that impelled [him] to criminal behavior" and that there "were multiple factors that impelled [him] to criminal conduct" which he had not yet appreciated. The Board furthe r found Cowan needed to better assess and understand his triggers to be abl e to rectify his behavior and enhance his interactions with others. Furthermore, with a focus on the potential for rec idivism, the Board found the 200-month FET was "necessary in order to address the issues detailed" in its decision since Cowan had not made adequate progress in his rehabilitative
process.7 A- 1131

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The Board also considered mitigating factors such a s Cowan's involvement in programming for anger management and other counseling, but determined Cowan would benefit from further program ming given his history of infractions. The Board did highlight that the p arole eligibility could be reduced by commutation credits, making his current eligibility parole date September 2031. In sum, t he Board's decision to impose a 200-month FET was n ot arbitrary, capricious or unreasonable. The Board c onsidered the aggregate of all pertinent factors including those set forth in N.J.A. C. 10A:71 -3.11(b), and its findings are supported by sufficient, credible evidence in the record.

Affirmed.