SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2010-14T4

WAYNE COLE,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

______________________________________

Submitted December 21, 2016 – Decided

Before Judges Simonelli and Gooden Brown.

On appeal from the New Jersey State Parole 

Board.

Wayne Cole, appellant pro se.

Christopher S. Porrino, Attorney General, 

attorney for respondent (Lisa A. Puglisi, 

Assistant Attorney General, of counsel; 

Christopher C. Josephson, Deputy Attorney 

General, on the brief).

PER CURIAM

Appellant Wayne Cole, an inmate at Northern State Prison, 

appeals from the August 27, 2014 final agency decision of the 

State Parole Board (Board), which affirmed the decision of a threeNOT 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.

May 9, 2017
2 A-2010-14T4

member Board Panel (Panel) to deny parole and impose a 168-month 

future eligibility term (FET). For the reasons that follow, we 

affirm.

Cole was charged in a seventy-count indictment with attempted 

murder (eleven counts), kidnapping (three counts), aggravated 

assault (forty-seven counts), endangering the welfare of a child 

(two counts), weapons offenses (four counts), armed burglary (two 

counts), and criminal mischief (one count). The charges stemmed 

from Cole holding his paramour and her two young children hostage 

in a motel room at gunpoint. Cole fired at several police officers 

who responded to the domestic dispute during a lengthy stand-off 

that finally ended with Cole surrendering. Following a jury trial, 

Cole was convicted of sixty-three of the seventy counts and, after 

appropriate mergers, was sentenced on twenty-four counts to an 

aggregate term of 123 years' imprisonment with fifty-two and onehalf years of parole ineligibility pursuant to the No Early Release 

Act, N.J.S.A. 2C:43-7.2.

On appeal, we reversed Cole's convictions and remanded for a 

new trial. On March 1, 2000, Cole pled guilty to one count of 

first-degree kidnapping, N.J.S.A. 2C:13-1(a); one count of seconddegree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); 

and five counts of first-degree attempted murder, N.J.S.A. 2C:5-1 

and N.J.S.A. 2C:11-3. On March 29, 2000, Cole was sentenced to 
3 A-2010-14T4

an aggregate term of forty years' imprisonment with a twenty-year 

period of parole ineligibility.

Cole became eligible for parole on December 23, 2013. A

hearing officer conducted an initial hearing on July 3, 2013, and 

referred the matter to a Panel. After conducting an interview and 

considering documentation in the case file as well as confidential 

materials and a professional report, on August 23, 2013, a twomember Panel denied Cole parole. To support the denial, the Panel 

cited prosecutorial objection; Cole's prior criminal record;1 the 

failure of a prior incarceration to deter his criminal behavior;

and Cole's commission of numerous, persistent, and serious 

institutional infractions, which were consistent with his prior 

criminal record and resulted in the loss of commutation time, 

confinement in detention and administrative segregation.2

In addition, the Panel relied on Cole's insufficient problem 

resolution skills, evidenced by a lack of insight into his criminal 

behavior, his denial of his crimes, his minimization of his 

 

1 Cole was previously convicted for shoplifting and possession of 

a controlled dangerous substance. On the drug charge, he received 

a one-year prison sentence.

2 As of August 23, 2013, Cole had committed thirty-one

institutional infractions, the most recent occurring on February 

28, 2013. At least eleven infractions were asterisk offenses. 

Asterisk offenses "are considered the most serious and result in 

the most severe sanctions[.]" N.J.A.C. 10A:4-4.1(a).
4 A-2010-14T4

conduct, and his failure to sufficiently address a substance abuse 

problem despite blaming his crimes on alcohol. The Panel also 

noted that Cole lacked remorse and has taken "no responsibility 

for his assaultive behavior[,] which has continued in prison[.]"

In mitigation, the Panel considered Cole's participation in 

institutional programs, his average to above-average institutional 

reports, his attempts to enroll and participate in programs,

although not admitted, and the restoration of commutation time. 

Nonetheless, the Panel denied parole finding "a substantial 

likelihood" that Cole would commit a new crime if released on 

parole and referred the matter to a three-member Panel for the 

establishment of a FET in excess of the regulatory guidelines. 

In a January 14, 2014 written decision, the three-member 

Panel affirmed the denial of parole and imposed a 168-month FET 

pursuant to N.J.A.C. 10A:71-3.21(d).3 After considering the 

factors enumerated in N.J.A.C. 10A:71-3.11,4 the Board determined

 

3 N.J.A.C. 10A:71-3.21(d) authorizes a three-member Panel to 

"establish a future parole eligibility date which differs from 

that required by the provisions of (a) or (b) and (c) . . . if the 

future parole eligibility date which would be established pursuant 

to such subsections is clearly inappropriate due to the inmate's 

lack of satisfactory progress in reducing the likelihood of future 

criminal behavior."

4 N.J.A.C. 10A:71-3.11(a) provides that "[p]arole decisions shall 

be based on the aggregate of all pertinent factors . . . ." 

Subsection (b) provides that "[t]he hearing officer, Board panel 
5 A-2010-14T4

"that the factors supporting the denial of parole, collectively, 

[were] of such a serious nature as to warrant the setting of a 

[FET] which differs from the presumptive term[,]" and any term 

less than a 168-month FET "would be wholly inconsistent with the 

conclusion that, after nineteen . . . years of incarceration, 

[Cole] ha[d] not shown the requisite amount of rehabilitative 

progress in reducing the likelihood of future criminal activity." 

Cole appealed both the two-member and the three-member Panel 

decisions to the full Board. In an August 27, 2014 final written 

decision, the Board affirmed the denial of parole and the 

imposition of a 168-month FET term. The Board concurred with the 

two-member Panel's determination that "a preponderance of 

evidence" indicated "that there [was] a substantial likelihood 

that [Cole] would commit a crime if released on parole at this 

time." The Board also concurred with the determination of the 

three-member Panel to establish a 168-month FET. 

In addressing Cole's assertion that the Panels considered an 

incomplete record, which omitted his participation in several 

programs, the Board noted that the Panels amended their respective 

decisions to include his participation in those programs as a 

 

or Board shall consider [the twenty-three enumerated factors] and, 

in addition, may consider any other factors deemed relevant" at a 

parole hearing. 
6 A-2010-14T4

mitigating factor. However, the Board also noted the inclusion 

of Cole's Risk Assessment Evaluation Score of thirty-seven, which 

was indicative of a high risk for recidivism, and pointed out that 

notwithstanding these amendments, the Panel decisions remained 

unchanged. 

The Board confirmed that, given Cole's sentence date, the 

appropriate parole release standard was "whether the preponderance 

of evidence indicate[d] a substantial likelihood that [Cole] would 

commit a new crime if released on parole" and rejected Cole's 

contention that the Panels applied an incorrect standard. The 

Board also rejected Cole's argument that the Panels based their 

decisions solely "on the negative aspects in the record[.]" 

Rather, the Board concluded that the Panels considered "the entire 

record governed by the factors set forth in . . . N.J.A.C. 10A:71-

3.11." 

In addition, the Board found that the Panels properly 

considered Cole's "commission of serious disciplinary infractions" 

as permitted under N.J.A.C. 10A:71-3.11(b)(2), and Cole's 

"adjustment to incarceration to determine [his] suitability for 

parole[,]" as permitted under N.J.A.C. 10A:71-3.11(b)(4).

Similarly, Cole's statements "reflecting on the substantial 

likelihood that he will commit another crime[,]" were properly 

considered by the Panels pursuant to N.J.A.C. 10A:71-3.11(b)(17). 
7 A-2010-14T4

In addition, the Board determined that the Panels' consideration 

of information classified as confidential pursuant to N.J.A.C.

10A:71-2.2(c) was appropriate, and the Board was in agreement with 

both the Panels' utilization of the information and its 

classification as confidential. 

In rejecting Cole's contentions that his acknowledgement of 

responsibility for his wrongdoing and his rehabilitative efforts 

were disregarded, the Board noted that "program participation is 

one factor of many . . . and is not the only indicator of 

rehabilitation." Further, the Board found that Cole's "program 

participation [did] not negate the fact that [Cole] still lack[ed] 

insight into [his] criminal behavior, den[ied his] crime and 

minimize[d his] conduct." The Board explained:

[A]lthough it appears that you have made some 

progress, your criminal behavior is deeply 

rooted as evidenced by your many institutional 

infractions. This contradicts your assertion 

of sufficient rehabilitation. Further, . . . 

you have a serious and extensive substance 

abuse problem and . . . you admit to being 

"very very intoxicated" at the time of the 

present offense. The Board notes that while 

acknowledging the serious consequences of your 

criminal activity and substance abuse is a 

step towards rehabilitation, it represents 

only an initial effort at rehabilitation. 

Further, the Board finds . . . that you are 

either unable or unwilling to sufficiently 

address your addiction/extreme conduct with 

substantive counseling. Additionally, your 

continued accrual of institutional 

infractions makes obtaining the counseling you 
8 A-2010-14T4

need even more difficult. The Board further 

finds that your admission of guilt may help 

you to develop insight into the causes of your 

criminal behavior, but does not equate to a 

change in your behavior. The Board finds 

that . . . [y]ou have a prolonged and distinct 

history of violence which cannot be merely 

qualified and excused. You have failed to 

explore and address the root causes of your 

violent and maladaptive conduct through 

institutional programming or by some other 

method which could yield progress in this key 

area. Therefore, in assessing your case, the 

Board concurs with the determination of the 

Board panel that, based on the aggregate of 

all relevant factors, there is a substantial 

likelihood that you will commit another crime 

if released on parole at this time.

. . . . 

Finally, the Board finds that other than 

your own interpretation of information that 

is already part of the record[,] you have not 

identified any material facts the Board panel 

failed to consider or any written Board policy 

or procedure to which the Board panel's 

decision is contrary.

Cole filed this appeal, presenting the following contentions

for our consideration: 

POINT ONE

THE PAROLE BOARD DETERMINATION SHOULD BE 

OVERTURNED BECAUSE THE RECORD DOES NOT SUPPORT 

A FINDING THAT IF RELEASED, THE APPELLANT 

WOULD COMMIT ANOTHER CRIME. 

POINT TWO 

THE FET IMPOSED IS EXCESSIVE AND SHOULD BE 

REDUCED. 
9 A-2010-14T4

We have considered these contentions in light of the record and

applicable legal principles and conclude they are without 

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

2:11-3(e)(1)(E). We affirm substantially for the reasons 

expressed in the Board's comprehensive written decision. We add 

only the following brief comments. 

Our review of the Board's decisions is limited. Hare v. N.J. 

State Parole Bd., 368 N.J. Super. 175, 179 (App. Div.), certif. 

denied, 180 N.J. 452 (2004). "Parole Board decisions are highly 

individualized discretionary appraisals, and should only be 

reversed if found to be arbitrary or capricious." Id. at 179-80 

(citations and internal quotation marks omitted). As directed by 

our Supreme Court, our task is to determine

(1)whether the agency's action violates 

express or implied legislative policy, 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., 166 N.J.

113, 172 (2001).]

Thus, where the Board has applied the correct legal standard, 

our role is limited to determining whether the decision was 

arbitrary, capricious or unreasonable. McGowan v. N.J. State 
10 A-2010-14T4

Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). We "must 

determine whether the factual finding could reasonably have been 

reached on sufficient credible evidence in the whole record." 

Hare, supra, 368 N.J. Super. at 179. In making this determination, 

we "may not substitute [our] judgment for that of the agency, and 

an agency's exercise of its statutorily-delegated responsibilities 

is accorded a strong presumption of reasonableness." McGowan, 

supra, 347 N.J. Super. at 563 (citation omitted). Accordingly, 

"[t]he burden of showing that an action was arbitrary, unreasonable 

or capricious rests upon the appellant." Ibid. 

Under N.J.A.C. 10A:71-3.21(a)(1), upon a determination to 

deny parole to a prison inmate, the standard future parole 

eligibility date upon which the inmate shall be primarily eligible 

for parole shall be twenty-seven additional months for "a prison

inmate serving a sentence for . . . kidnapping or serving any 

minimum-maximum or specific sentence in excess of [fourteen] 

years[.]" However, the Board may exceed the FET guidelines if the 

standard term 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). In determining that 

the presumptive FET terms are "clearly inappropriate, the threemember panel shall consider the factors enumerated in N.J.A.C.

10A:71-3.11." Ibid. 
11 A-2010-14T4

Here, we discern no basis to disturb the Board's decision. 

The Board considered all relevant factors under N.J.A.C. 10A:71-

3.11, and its decision is supported by sufficient credible evidence 

in the record and is entitled to our deference. Likewise, we are 

satisfied that the imposition of a 168-month FET, although lengthy, 

was neither arbitrary, capricious nor unreasonable. See McGowan 

v. N.J. State Parole Bd., 347 N.J. Super. 544, 565 (App. Div. 

2002) (affirming the imposition of a thirty-year FET based on 

appellant's high likelihood of recidivism). 

Affirmed.