SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3779- 21 B.J., Appellant,

v. NEW JERSEY STATE PAROLE BOARD, Respondent.

_______________________

Argued February 28, 2024

– Decided March 26, 2024Before Judges Accurso, Gummer, and WalcottHenderson. On appeal from the New Jersey State Parole Board. Scott Michael Welfel, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Scott Michael Welfel, of counsel and on the briefs). Christopher Josephson, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin , Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Christopher Josephson, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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- 3779

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PER CURIAM B.J. has served over thirty-two years in prison for a double felony-murder conviction. 1 He appeals from the March 30, 2022 final agency dec ision of the New Jersey State Parole Board (Board), denying his application for parole and imposing an eight-year (ninety- six -month) future eligibility term (FET). W e vacate the Board's decision and remand for a new he aring before the full Board and a new decision by the Board consistent with the Supreme Court's instructions in Acoli v. New Jersey State Parole Bo ard, 250 N.J. 431 (2022).
I. B.J. is currently fifty-f

our years old. In 1991, he and another man shot and killed two employees of a gas station they were robbing. 2 A jury found B.J. guilty of second-degree conspiracy, N.J.S.A. 2C:5- 2, and two counts each of : first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); first-degree rob bery, N.J.S.A. 2C:15- 1; second-degree possession of a weapon for an unlawfu l purpose, N.J.S.A. 2C:39-

1 We use initials to protect appellant's privacy inte rests because the appeal requires that we discuss his mental-health records.

2 Neither B.J. nor the Board provided us with the tri al transcripts, but the basic facts surrounding the murders were established at t rial and are summarized in reports included in the record.3 A- 3779

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4(a) ; and third-degree unlawful possession of a weapon, N .J.S.A. 2C: 39 -5(b). He subsequently pleaded guilty to third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c), and third-degree recei ving stolen property , N.J.S.A. 2C:20-7. He was sentenced to an aggregate term of life imprisonment, with a mandatory minimum term of thirty years. B.J. became eligible for parole in August 20 21

. In anticipation of his parole eligibility, in February 2021, Jan Segal, Ph .D., conducted a mental health parole evaluation of B.J. As part of his evaluation, Dr. S egal conducted a Level of Service Invento ry -Revised (LSI-R) assessment. Based on an LSI-R sco re of twenty-two, Dr. Segal determined B.J. presented "a moderate risk for recidivism with a 28% chance of re-arrest and a 17.1% chance o f reconviction within two years of release." He described B.J.'s "Risk of Reoffending" as "Mediu m" and his "risk for future violence" to be "moderate. " However, Dr. Segal concluded B.J.'s "likelihood" of "successfully completing a p rojected term of parole" was "generally fair." In his written report, Dr. Segal characterized B.J. 's early adjustment to incarceration as "clearly problematic," but his "mo re recent adjustment [a]s satisfactory with clearly satisfactory motivation f or programming." That finding is supported by B.J.'s prison record. During his i ncarceration, B.J. was4 A- 3779

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disciplined for eighteen infractions. Only five of those infractions were "asterisk" infractions, which are "prohibited acts considered to be the most serious violations, resulting in the most severe sa nc tions." Berta v. N.J. State Parole Bd., 473 N.J. Super. 284, 293 n.5 (App. Div. 2022). The vast majority of B.J.'s infractions occurred in the early years of his incarceration. Fourteen of th e eighteen infractions occurred during the years 19 92 through 1998. Of the four remaining infractions, only one of them was an asterisk infraction: the use of marijuana in 2009. According to B.J., he used th e marijuana then in an effort to escape from reality after a family member had di ed. His mo st recent infraction, refusing to obey, occurred nearly ten y ears ago in 2014 when, according to B.J., he had an anxiety attack after b eing placed in a small transport van without being given anti-anxiety medicine to tr eat his documented claustrophobia. Dr. Segal acknowledged B.J. "has earned his GED and has multiple, relevant programming accomplishments with more rece nt prosocial behavior noted." From February 2000 through May 2019, B. J

. participated in the following programs: Human Biology (2000); Food Ser vice Training Program (2001); African American History (2001); General Ed ucational Development (2006); The Stock Market Game (2006); Moral Recogni tion Therapy (20045 A- 3779

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through 2006); Living In Balance (2009); Thinking f or a Change (2011); Workforce Learning Link (2012 through 2014); Helpin g Offenders Parent Effectively (2013); Cage Your Rage For Men (2013); Successful Employment and Lawful Living (2014); Barber Styling (2016); Yo ur Role in the Green Environment LEED (2016); Smart Recovery (2017); Cor e Curriculum: Introductory Craft Skills (2017); Carpentry Level O ne (2017); Construction Site Safety Orientation (2017); Change Your Patterns and Change Your Life (2017 through 2018); and Focus on the Victim (2019). B.J. was a lso employed during his incarceration, holding various jobs in the pris on kitchen and in a clothing shop located in the prison. Dr. Segal described B.J. as "present[ing] as genera lly stable with no evidence of a major mood, anxiety, or thought disor der." According to Dr. Segal, B.J.'s age "is usually commensurate with dec reased impulsivity, reactivity and likely lessened criminality." Although he noted some "[a]ntisocial personality traits," Dr. Segal found B.J. did "not appear to be exhibiting any psychiatric concerns that require me ntal health treatment" and had "no acute psychiatric symptoms to be considered if [he] is released." Noting B.J.'s claustrophobia, Dr. Segal recommended but di d not require that he "seek counseling to help with breathing and improving sel f-control strategies to help6 A- 3779

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manag[e] himself if in enclose[d] spaces." He foun d B.J. had "developed some relevant work skills while" incarcerated and that hi s parole plans were "feasible but require confirmation."
Dr . Segal indicated B.J

. had a history of cannabis use when he was a teenager; had "acknowledge[d] that at least some of his crimes were committed after having smoked marijuana"; had had only "o ne use related infraction," which had occurred in 2009; and had participated in a substance-abuse program while he was incarcerated. 3 In his list of "[r]ecommendations while in prison ," Dr. Segal did not include participation in a substa nce-abuse program. 4 Nevertheless, Dr. Segal recommended that "[i]f paro led," B.J. participate in "[m]andatory random drug testing" and a "[r]egular 12-step program." Dr. Segal found B.J. "has cannabis use problems" even though the record contained no evidence of marijuana use for over ten years and B. J. had participated in a substance-abuse program after his "one use related infraction."

3 In fact, B.J. had participated in two substance-abu se programs while he was incarcerated.

4 He did not recommend B.J. participate in a substanc e-abuse program while incarcerated even though in the LSI-R assessment, D r. Segal reported that B.J. had a "[d]rug problem, currently," scoring it as a one, meaning "[a] relatively unsatisfactory situation with a need for improvemen t."7 A- 3779

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B.J. submitted to the Board his parole release plan

. As part of the release plan, he submitted an "Inmate Statement" in which h e acknowledged he had "no excuse for the devastation [he had] cause[d] these men['s] families an[d] at that age all [he had been] thinking about was instant gra tification." In his statement, he credited prison for sav ing his life because "[i]t allowed [him] the opportunity to see how senseless, stupid, careless, arrogant, s elfish, and inconsiderate [he] was as a young adult." If released, B.J. planned to live with his mother and two siblings and to pursue employment. The Board received lett ers from two business owners stating they would provide B.J. wit h employment on his release as well as three additional letters in support of hi s parole. On June 28, 2021, a two-member panel of the Board h eld a paroleeligibility hearing. During the eligibility hearin g, a panel member asked B.J. why at the age of twenty-one he had been "out there livin' that lifestyle and rippin' and runnin'." B.J. explained, "you're not really caring about the person or that person's property when you have a criminal mind set

. . . . my whole lifestyle was being a criminal." The other panel m ember responded: "I mean it still is in a way, isn't it?" B.J. tried to answer him, stating "No. Because now , being I have learned from Focus on the Victim and

– and any type of criminal8 A- 3779

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behavior my mind set - - ." Before he could finish h is answer, the panel member interrupted him, asking another question. When a panel member asked him to explain why he had "just started to take [his] foot off . . . the accelerator like a co uple of years ago ," 5 B.J. attempted to respond, stating:

Again, I take

-- I take full ownership. But again, I had been trying to get

-- I [had] been . . . gettin' in programs , I [have] been tryin'. I mean alternate thinking, ins tead of

-- instead of

-- I have (indiscernible) because when I was (indiscernible) in South Woods, right (indiscernible) some of the guys were doin' (indiscernible). But before he could finish his answer, the other pa nel member interrupted him and asked a different question. After B.J. conceded marijuana use "was probably re ally big" in his life when he was "a young man," a panel member asked him if he meant "[u]p to and including in your 40s?"

-- apparently referencing the 2009 infraction. Before B.J. could respond to that question, the other pane l member asked a different question.

5 Presumably, the panel member meant to ask why B.J. had not stopped sooner having infractions while incarcerated. Although the panel member seemed to think B.J.'s latest infraction had occurred "a coup le of years ago," in fact his last infraction had occurred about six-and- one -half years ago.9 A- 3779

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The two-member panel denied B.J. parole , issuing on June 28, 2021, an initial decision consisting of checkmarks on a stan dard checklist sheet with minimal commentary by the panel. In its decision, the panel checked that it had "determined a substantial likelihood exists that [B .J.] would commit a new crime if released on parole at th is time." The panel checked six mitigating factors: participation in programs specific to behavior, par ticipation in institutional programs, institutional reports reflect favorable i nstitutional adjustment, attempt made to enroll and participate in programs but was not admitted, minimum custody status achieved or maintained, and commutat ion time restored

. The panel checked as reasons for its denial several factors related to the crimes for which he was incarcerated, factors relat ed to his failure to remain crime-free during a prior probationary period that had taken place decades before , his institutional infractions, Dr. Segal's report, and "insufficient problem(s) resolution," which was based on findings of "lack of insight into criminal behavior" and a failure to "sufficiently a ddress[]" a "substance abuse problem." The panel concluded B.J. "is progressing but still shows a need for more programming, maturity and change of attitude t owards laws." The panel referred the case to a three-member panel "for the establishment of a FET that may be in excess of administrative guidelines."10 A- 3779

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After receiving the decision, B.J. submitted a four -page letter to the Board, expressing his remorse for the pain he had c aused the victims' famil y members, detailing his efforts at redemption, and e xpressing his willingness to take or retake any programs. The two -member panel issued an amended decision dated August 13 , 2021, "to clarify the factors that were in the reco rd . . . and that were relied upon

. . . ." The panel added factors related to B.J.'s institutional infractions and the failure of his prior incarcerations and probationar y periods , which had taken place over thirty years before the panel issued its decisions, to deter criminal behavior.
On October 6, 2021, the three-member panel convened an d set a ninetysix -month FET. It issued a written explanation of its decision on November 9, 2021. Citing the same reasons for its decision as the two-member panel had cited for denying parole, the panel concluded "the factors supporting the denial of parole, collectively, are of such a serious natu re as to warrant the establishment of a future eligibility term which di ffers from the presumptive term of twenty-seven months." The three-member panel faulted B.J. for his "lack [of] insight into [his] criminal behavior" and for "not sufficiently addres s[ing his] substance abuse11 A- 3779

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problem." The panel concluded B.J. had a "substance abuse pro blem" even th ough a recent case assessment was devoid of any fin ding he had a substanceabuse problem. On the assessment, the "occasional use of cannabis and alcohol" was noted, substance abuse was found not to be a part of B. J.'s criminal history, and the offense for which he was incarcerated was d eemed not to have been committed while he was under the influence. The assessment contained a checklist of "factors considered," similar to the c hecklist contained in the twomember panel's decision ; "substance abuse problem has not been sufficiently addressed" was not checked on the case assessment. The two-member and three-member panels apparently did not consider the findings made in the case assessment but instead relied on Dr. Segal's report , which, at best, contained mixed and contradictory information concerning his views of B.J.'s purported substance abuse. Regarding B.J.'s purported lack of insight into his criminal behavior, the three-member panel focus ed on his interview by the two-member panel during the parole-eligibility hearing. The three-member p anel stated B.J. had "indicated to the [two-member] panel that [he] do[es] not 'blame them (victims) for they tried to stop the armed robbery so I would n't take any of the money.'" We do not see that language in the transcript of th e eligibility hearing.12 A- 3779

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According to the three-member panel, when the two-m ember panel ask ed B.J. if he still thought "in that manner," apparently meani ng with a criminal mind set, B.J. answered, "no, because now being I've done Foc us On the Victim." According to the transcript, B.J. had started to an swer , saying "No. Because now, being I have learned from Focus on the Victim and - - and any type of criminal behavior my mind set

-- " but was interrupted by another question from a panel member and was thereby prevented from finis hing his answer. The three-member panel stated B.J. had "side stepp ed " "pointed or reflective" questions from the two-member panel abo ut his "violent past" and that, regarding the murders for which he had been c onvicted, B.J. had "inferred [sic] that once the victims rushed towards [him] th e only option was to shoot them." But B.J. didn't actually say to the two-mem ber panel his "only option" was to shoot the victims. Regarding B.J.'s plan to reside with his mother, th e three-member panel incorrectly described his mother as "disabled and i n a wheelchair 'she's not able to defend herself or take care of herself.' Also l iving at the residence are your sister and brother, who assist your mother daily." But B.J. had told the13 A- 3779

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two -member panel his sister, not his mother, was disab led and confined to a wheelchair. 6 The three-member panel found B.J. had "present[ed] as not understanding the dynamics to [his] criminal thinking" because he had failed to:

articulate any specifics about [ his ] criminal mindset. [He] did not articulate the genesis of [his] crimin al thinking, [his] motivations to behave in a criminal manner beginning as a juvenile or what innate detai ls to [his] personality defects impelled [him] to cont inue to behave in a criminal manner even after interacti on with the criminal justice system. The panel further concluded B. J

. had failed to make "adequate progress in the rehabilitative process to ensure criminal behavior a nd decision-making does not occur again in the future." The three-member panel briefly referenced in its de cision B.J.'s "participation in programs," identifying specifical ly only four of the programs he had successfully completed. The panel made no m ention of the unrebutted letters others had submitted in support of his paro le. Citing specifically B.J.'s infraction history and i ts findings that he lacked "understanding [of] the dynamics to [his] criminal thinking" and had failed to

6 The panel issued an amended decision correcting tha t error after B.J. had appealed the decision, pointing out that error.14 A- 3779

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make "adequate progress in the rehabilitative proce ss," the three-member panel concluded "the factors supporting the denial of par ole, collectively, are of such a serious nature as to warrant the establishment of a [FET] which differs from the presumptive term . . . ." The panel imposed a ninety- six -month FET, over three times the presumptive FET of twenty-seven mon ths. See N.J.A.C. 10A:71- 3.21(a)(1) (setting a presumptive FET of twenty-sev en months for an inmate serving a sentence for murder). B.J. administratively appealed the two-member panel 's parole denial and the three-member panel's FET decision to the full B oard. In his appeal, B.J. contended the panels had failed to consider or give appropriate weight to certain material facts, including his age and immaturity at the time of the murders, that most of his institutional infractions were classifi ed as less serious and occurred during the early part of his incarceration, his las t serious infraction occurred in 2009 , he had completed numerous courses, he had taken res ponsibility for his criminal actions, and he had a parole plan that inc luded living with his able-bodied mother and promises of employment. The Board considered his appeal during a meeting he ld on March 30, 2022, and issued a written decision that day affirm ing both decisions. The Board concurred in the panels' findings, including that B .J. "still lacks insight into his15 A- 3779

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criminal behavior and has not sufficiently addresse d his substance abuse problem." This appeal followed. On appeal, B.J. argues the Board's findings, includ ing that he was sub stantially likely to commit a crime if released, we re not supported by substantial evidence in the record. B.J. also chal lenges the ninety- six -month FET as an excessive deviation beyond the standard t wenty- se ven-month FET. A review of the record convinces us the Board did n ot provide B.J. with a fair hearing. We therefore vacate the Board's decision and remand for a new hearing before the full Board

. II. An appellate court's review of Board decisions is l imited and deferential. Acoli, 250 N.J. at 439. Board decisions are "highl y 'individualized discretionary appraisals.'" Trantino v. N.J. State Parole Bd. (T rantino VI), 166 N.J. 113, 173 (2001) (quoting Beckworth v. N.J. State Parole Bd. , 62 N.J. 348, 359 (1973))

. Accordingly, courts overturn Board decisions only i f they are arbitrary and capricious. Ibid. In that regard, Board factual findings will not be disturbed if they "could reasonably have been reached on suffici ent credible evidence in the whole record." Hare v. N.J. State Parole Bd., 368 N.J. Super. 175, 179 (App. Div. 2004) (citing Trantino VI, 166 N.J. at 172). We accord that deference16 A- 3779

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because "[t]he decision of a parole board involves 'discretionary assessment[s] of a multiplicity of imponderables.'" Trantino VI, 166 N.J. at 201 (Baime, J., dissenting) (second alteration in original) (quotin g Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)). "The discretionary power exercised by the Parole Bo ard, however, is not unlimited or absolute." Acoli, 250 N.J. at 455. " [W]hen a parole decision is so far wide of the mark or so manifestly mistaken unde r the governing statutory standard, intervention is required in the interests of justice." Ibid. (c iting Trantino VI, 166 N.J. at 192). A Board decision wi ll not be sustained if it violates legislative policy, is not supported by su bstantial evidence in the record, or "could not reasonably have been made on a showin g of the relevant factors." Ibid. (q uoting Trantino v. N.J. State Parole Bd. (Trantino IV), 15 4 N.J. 19, 24 (1998)). The Parole Act of 1979 , N.J.S.A. 30:4-123.45 to -123.76, which governs B.J.'s parole, states a prisoner "shall be released on parole at the time of parole eligibility, unless [it is shown] by a preponderanc e of the evidence that there is a substantial likelihood that the inmate will commi t a crime under the law of this State if released on parole at such time." Ibid. (quotin g Trantino VI, 166 N.J. at 126 (alternations and omissions in original) (quoting N.J.S.A. 30:4 -123.5317 A- 3779

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(1979))). Thus, when an inmate becomes eligible for parole, t here is a "presumption in favor of parole," In re Applicatio n of Trantino (Trantino II) , 89 N.J. 347, 356 (1982), and the State must "prove that the prisoner is a recidivist and should not be released," Acoli, 250 N.J. at 456 (quoting N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)). "Assessing the risk that a parole-eligible candidate will reoffend requires a finding that is more than a mere probability and considerably less than a certa inty." Acoli, 250 N.J. at 456. "Only when the risk of the re offending rises to 'a substantial likelihood' may a parole-eligible inmate be denied parole." Ibid. ( quoting N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 550 (App. Div. 1988))

. Under the 1979 Parole Act, the Board must assess nu merous factors in determining whether the person is ready for parole. Ibid. N.J.A.C. 10A:71- 3.11(a) states the grant or denial of parole must " be based on the aggregate of all pertinent factors." That regulation sets forth a list of twenty-four factors that the Board shall consider, in addition to other fact ors the Board may deem relevant. Id. at 457 (citing N.J.A.C. 10A:71-3.11( b)). The Court in Acoli recently explained: Some of those factors include: facts and circumstan ces related to the underlying crime; offenses and disciplinary infractions committed while incarcerat ed; participation in institutional programs and academi c or18 A- 3779

- 21 vocational education programs; documentation reflecting personal goals, personal strengths or motivation for law-abiding behavior; mental and emotional health; parole plans; availability of community resources or support services; statements by the inmate reflecting on the likelihood that he [or sh e] will commit another crime; the failure to rehabilit ate; history of employment and education; and statement or testimony of any victim. [Ibid.] Although parole hearings are "informal," N.J.A.C. 10A:71-3.1 3(a), the Board must follow certain procedures in conducting the hearings and the inmates have certain rights in connection with the hearings. For example, "[t]he hearing officer, Board panel or Board shall receive as evid ence any relevant and reliable documents or testimony," N.J.A.C. 10A:71-3.13(c), a nd "[t]he inmate shall have the right to rebut any evidence and shall have the right to present evidence on his or her own behalf," N.J.A.C. 10A:71-3.13(e). The hearing officer, Board panel, or Board must bas e a parole decision "solely on the evidence presented at the hearing," N.J.A.C. 10A:71-3.13(j), including "material supplied by the inmate and repo rts and material which may be submitted by any persons or agencies which have knowledge of the inmate," N.J.A.C. 10A:71-3.11(a). They may not rely on selective portions of the record19 A- 3779

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that support a determination of likely recidivism w hile overlooking or undervaluing conflicting information. Trantino VI, 166 N.J. at 189- 90. The hearing officer, Board panel, or Board must con sider the applicable factors enumerated in N.J.A.C. 10A:71-3.11(b) in ma king a parole decision. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 5 44, 561 (App. Div. 2002). One of those factors is "[p]articipation in institutional programs which could have led to the improvement of problems diagnosed a t admission or during incarceration," including "academic or vocational e ducation programs" and "work assignments that provide on- the -job training . . . ." N.J.A.C. 10A:71- 3.11(b). Even giving the Board's and panels' decisions all the deference they are due, we are constrained to remand this matter for a new hearing. Having reviewed the record, we conclude th os e decisions resulted from an unfair process in which B.J. did not have a full opportuni ty to respond to the panel member's questions and the Board and its members se lectively relied on Dr. Segal's internally-inconsistent evaluation while fa iling to consider other information. We are convinced the panels' and the Board's conclusi ons that defendant "lacks insight into his criminal behavior and has not sufficiently addressed his substance abuse problem" were reached through a process that did20 A- 3779

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not give defendant a fair opportunity to demonstrat e otherwise

– not that it was his burden to do so. See Acoli, 250 N.J. at 456 (finding it is the State 's burden

" to prove that the prisoner is a recidivist and should not be released" (quoting Byrne, 93 N.J. at 205) ). The Board's and the panels' determination that B.J . lacked insight into his criminal behavior appears to be based largely on th e questioning conducted o f him by the two-member panel during the parole eligi bility hearing. The transcript of that proceeding demonstrates the pane l members repeatedly interrupted B.J. while he was attempting to respond to questions that went directly to the issue of his insight into his crimi nal behavior. We are left wondering if the panel members and the Board would have been satisfied with his responses had the panel members permitted him t o complete his answers to their questions instead of repeatedly interrupt ing him

. We recognize the informal nature of the proceedings before the Board , N.J.A.C. 10A:71-3.13(a) , but an inmate has the right to present evidence on his own behalf, N.J.A.C.
10A:71 -3.13(e), especially in response to critical questi ons raised by the panel

me mbers. Without any explanation of how and whether they had conside red and addressed the inconsistencies within Dr. Segal's evaluation and between his21 A- 3779

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evaluation and other information in the record, it isn't po ssible to make sense of the Board's and panels' conclusion B.J. has a subst ance-abuse problem he has failed to address sufficiently. Dr. Segal, the Boa rd, and the panels concluded B.J. has a substance-abuse problem even thou gh : the record is devoid of any evidence B.J. had used marijuana during the twelve years before his paroleeli gibility date, he had not incurred any "use related" infractions during the first seventeen years of his incarceration, the one and o nly "use related" infraction had occurred in 2009, he had participated in two su bstance-abuse programs since that infraction, on the recent case assessment "substance abuse problem has not been sufficiently addressed" was not checked, and e ven Dr. Segal had not recommend ed that B.J. participate in a substance-abuse program while incarcerated. If B.J. had an insufficiently-addres sed substance-abuse problem, wouldn't Dr. Segal have recommended he participate in a substance-abuse program while incarcerated? With no apparent effort to address those inconsiste ncies in the record, we are left with the conclusion the Board and the pane ls improperly relied on selective portions of the record that support a det ermination of likely recidivism while overlooking or undervaluing conflicting infor mation. Trantino VI, 166 N.J. at 189- 90. And we have reason to believe the Board and the p anels did so22 A- 3779

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in other ways as well. For example, the three-memb er panel made scant mention in its decision of the programs B.J. had successful ly completed; neither the twoperson nor the three-person panel mention ed the unrebutted letters others had submitted in support of his parole. The limited or non-existing references made to those programs and letters does not allow us to review and conclude the panels and the Board conducted the analysis required by th e 1979 Parole Act. And although the Board can and should consider B.J.'s i nstitutional infractions, it also should consider the fact that the vast majorit y of those infractions , particularly the serious infractions, occurred in t he early part of his incarceration. It isn't clear from their decisions that the Board or panels gave any consideration to that fact. The Board's and the panels' focus on B.J.'s in stitutional infractions, his juvenile record, his commission of crimes while on probation decades ago , and the nature of the crimes for which he is currently incarcerated makes us concerned that the Board and the panels improperly consider ed the punitive aspects of B.J.'s sentence, see Trantino II, 89 N.J . at 372, in stead of "focus[ing their] attention squarely on the likelihood of reci divism." McGowan, 347 N.J. Super. at 565.23 A- 3779

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We are equally unconvinced the Board and the panel s applied the appropriate standard in rendering their decisions. Dr. Segal determined B.J. presented "a moderate risk for recidivism with a 28 % chance of re-arrest and a 17.1% chance of reconviction within two years of re lease" and described B.J.'s "Risk for Reoffending" as "Medium." However, he al so concluded B.J.'s "likelihood" of "successfully completing a projecte d term of parole" was "generally fair." How can someone with a "generally fair" likelihood of "successfully completing a projected term of parole " be deemed at the same time to have a "Medium" risk of reoffending? Is a "moderate risk for recidivism" the equivalent of "a substantial likelihood" of reoffendi ng? We respectfully remind the Board that "[o]nly when the risk of reoffending rises to 'a substantial likelihood' may a parole-eligible inmate be denied parole." See Acoli, 250 N.J. at 456 (quoting Cestari, 224 N.J. Super. at 550 ). For all of those reasons, we vacate the Board's de cision and remand the matter to the Board, directing that within sixty da ys the Board conduct a new hearing and rend er a new decision that address es the concerns raised in this opinion and the various factors set forth in the Board's regulation s and is consistent with the Supreme Court's instructions in Acoli, 250 N.J. 431.24 A- 3779

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In light of our remand, we need not engage in an exc essive analysis of the ninety- six -month FET imposed by the Board. After denying par ole, the Board must establish an FET. N.J.A.C. 10A:71-3.18(a)(2). When the Board denies parole for a person serving a life sentence, the st andard FET is twenty-seven months. N.J.A.C. 10A:71-3.21(a)(1). The Board, however, ca n exceed the FET guideline if it determines that the presumption "is clearly inappropriate due to the inmate's lack of satisfactory progress in reduc ing the likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d). The three-member panel that established the eight-y ear FET did not adequately articulate the reasons for imposing an F ET that was over three times the presumptive FET. It simply parroted the findings of the two-member panel without explaining why those findings justified an FET that significantly exceeded the presumptive FET. Consequently, on rem and, if the Board decides to deny B.J. parole, it must also reconsider the ap propriate FET and explain the reasons for an FET beyond the statutory presumption of twenty-seven months. For the reasons outlined above, we vacate the March 30, 202 2 Board decision, remand the matter to the Board, and direc t that within sixty days the full Board conduct a new hearing and render a new d ecision

. We direct the Board to give B.J. a fair opportunity to respond fu lly to any questions posed by25 A- 3779

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Board members and "to rebut any evidence and . . . to present evidence on his . . . own behalf," consistent with N.J.A.C. 10A:71 -3.13(e). We also direct th e Board to base its reconsideration of this case on t he facts and the governing law, which includes, as set forth above (1) a presumptio n in favor of parole and (2) the burden on the State to prove, by a preponderanc e of the evidence, that there is a substantial likelihood the inmate will commit a crime if released on parole. The Board shall issue a complete and meaningful exp lanation of the reasons for whatever action it takes. Vacated and remanded. We do not retain jurisdictio n .