NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0879-15T4
LARRY YELLOCK,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
________________________________________________________
Submitted March 21, 2017 – Decided April 11, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from the New Jersey State Parole Board.
Larry Yellock, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of Counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Larry Yellock appeals from a September 23, 2015
determination of the New Jersey State Parole Board (Board), denying his appeal from the decision of a two-member Board Panel, which
denied parole and established a one-hundred and twenty-month (120)
future parole eligibility term (FET), in accordance with N.J.A.C.
10A:71-3.21(a). A three-member Board Panel also upheld this
determination. The full Board reviewed the matter and affirmed
the denial of parole and FET of 120-months. Appellant raises one
point for our consideration, namely, the matter should be remanded
to the Board for a full and fair hearing, with this court retaining
jurisdiction. We disagree and affirm.
Appellant is confined at South Woods State Prison, serving a
life sentence for two counts of murder. He first became eligible
for parole on December 10, 2014, after serving thirty-five years
and fifteen days. A two member Board Panel considered appellant's
case and denied parole. In denying parole, the two member-panel
cited appellant's prior criminal record, which had become
increasingly more serious, the fact that prior incarceration and
opportunity for parole had failed to deter appellant from engaging
in further criminal behavior, and insufficient problem resolution.
As mitigating factors, the two-member panel found that
appellant had been infraction free, had participated in
institutional programs, and had achieved a favorable score on his
risk assessment evaluation. The two-member panel later amended
its decision to include that appellant had achieved average to
2 A-0879-15T4 above average institutional reports, but also continued to cite
to appellant's extensive prior criminal record and that he had
committed a crime while attempting to elude prosecution. Finally,
the two-member panel viewed the risk assessment score of twenty
(20), which was indicative of a moderate risk of recidivism, as
an additional factor that militated against granting appellant
parole.
Appellant filed an appeal challenging the factual findings
of the two-member Board Panel as insufficient to support its
conclusions. A three-member Board Panel considered the appeal and
concluded that the denial of parole and establishment of an
extended FET was supported by the evidence in the record.
Appellant filed an administrative appeal to the full Board, which
affirmed the denial of parole and the establishment of the 120-
month FET.
Our scope of review is very limited. Administrative decisions
of the Board are "grounded in strong public policy concerns and
practical realities." Trantino v. N.J. State Parole Bd., 166 N.J.
113, 200 (2001) (Trantino V). "The decision of a parole board
involves 'discretionary assessment[s] of a multiplicity of
imponderables. . . .'" Id. at 201 (alteration in original)
(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)).
3 A-0879-15T4 The Board has broad, but not unlimited, discretionary power. Monks
v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).
In our review, we do not disturb the factual findings of the
Board if they "could reasonably have been reached on sufficient
credible evidence in the whole record." Trantino V, supra, 166
N.J. at 199 (quoting Trantino v. N.J. State Parole Bd., 154 N.J.
19, 24 (1998) (Trantino IV)). See also McGowan v. N.J. State
Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Further,
we remain mindful that "[t]o a greater degree than is the case
with other administrative agencies, the Parole Board's decision-
making function involves individualized discretionary appraisals.
"Trantino V, supra, 166 N.J. at 201 (citation omitted).
We will not second-guess the Board's application of its
considerable expertise unless we find the decision was arbitrary
and capricious. Ibid. The burden is on the appellant to prove
the Board acted unreasonably. Bowden v. Bayside State Prison, 268
N.J.Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J.
469 (1994).
Parole reviews are guided by N.J.S.A. 30:4-123.53(a), which
states that an adult inmate shall be released on parole at the
time of eligibility unless the statutorily required report or
information disclosed during the parole hearing "indicates by a
preponderance of the evidence that there is a substantial
4 A-0879-15T4 likelihood that the inmate will commit a crime under the laws of
this State if released on parole at such time." We have
interpreted "substantial likelihood" in the context of parole
hearings as requiring more than evidence of "potential" to engage
in further criminal activity. See N.J. Parole Bd. v. Cestari, 224
N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649
(1988). Further guidance is found in the New Jersey Administrative
Code, which provides:
(a) Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.
(b) The . . . Board . . . may consider any other factors deemed relevant [.]
[N.J.A.C. 10A:71-3.11.]
Consequently, a decision to grant parole release is multi-
faceted, and reflects consideration of various factors, some of
which are objectively verifiable along with a discretionary
assessment of the inmate's likely future behavior based upon the
Board's experience. See Greenholtz, supra, 442 U.S. at 9-10, 99
S. Ct. at 2105, 60 L. Ed. 2d at 677; Puchalski v. N.J. State
Parole Bd., 104 N.J. Super. 294, 299-300 (App. Div.), aff'd by
55 N.J. 133 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841,
5 A-0879-15T4 26 L. Ed. 2d 270 (1970). "Common sense dictates that [the Board's]
prediction as to future conduct and its opinion as to compatibility
with the public welfare be grounded on due consideration of the
aggregate of all the factors which may have pertinence." Beckworth
v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973). Other
appropriate factors the Board may consider pursuant to N.J.A.C.
10A:713.11(b), include: (1) the nature and pattern of previous
convictions; (2) adjustment to previous probation, parole, and
incarceration; (3) aggravating and mitigating factors surrounding
Free access — add to your briefcase to read the full text and ask questions with AI
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-0879-15T4
LARRY YELLOCK,
Appellant,
v.
NEW JERSEY STATE PAROLE BOARD,
Respondent.
________________________________________________________
Submitted March 21, 2017 – Decided April 11, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from the New Jersey State Parole Board.
Larry Yellock, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of Counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).
PER CURIAM
Appellant Larry Yellock appeals from a September 23, 2015
determination of the New Jersey State Parole Board (Board), denying his appeal from the decision of a two-member Board Panel, which
denied parole and established a one-hundred and twenty-month (120)
future parole eligibility term (FET), in accordance with N.J.A.C.
10A:71-3.21(a). A three-member Board Panel also upheld this
determination. The full Board reviewed the matter and affirmed
the denial of parole and FET of 120-months. Appellant raises one
point for our consideration, namely, the matter should be remanded
to the Board for a full and fair hearing, with this court retaining
jurisdiction. We disagree and affirm.
Appellant is confined at South Woods State Prison, serving a
life sentence for two counts of murder. He first became eligible
for parole on December 10, 2014, after serving thirty-five years
and fifteen days. A two member Board Panel considered appellant's
case and denied parole. In denying parole, the two member-panel
cited appellant's prior criminal record, which had become
increasingly more serious, the fact that prior incarceration and
opportunity for parole had failed to deter appellant from engaging
in further criminal behavior, and insufficient problem resolution.
As mitigating factors, the two-member panel found that
appellant had been infraction free, had participated in
institutional programs, and had achieved a favorable score on his
risk assessment evaluation. The two-member panel later amended
its decision to include that appellant had achieved average to
2 A-0879-15T4 above average institutional reports, but also continued to cite
to appellant's extensive prior criminal record and that he had
committed a crime while attempting to elude prosecution. Finally,
the two-member panel viewed the risk assessment score of twenty
(20), which was indicative of a moderate risk of recidivism, as
an additional factor that militated against granting appellant
parole.
Appellant filed an appeal challenging the factual findings
of the two-member Board Panel as insufficient to support its
conclusions. A three-member Board Panel considered the appeal and
concluded that the denial of parole and establishment of an
extended FET was supported by the evidence in the record.
Appellant filed an administrative appeal to the full Board, which
affirmed the denial of parole and the establishment of the 120-
month FET.
Our scope of review is very limited. Administrative decisions
of the Board are "grounded in strong public policy concerns and
practical realities." Trantino v. N.J. State Parole Bd., 166 N.J.
113, 200 (2001) (Trantino V). "The decision of a parole board
involves 'discretionary assessment[s] of a multiplicity of
imponderables. . . .'" Id. at 201 (alteration in original)
(quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979)).
3 A-0879-15T4 The Board has broad, but not unlimited, discretionary power. Monks
v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971).
In our review, we do not disturb the factual findings of the
Board if they "could reasonably have been reached on sufficient
credible evidence in the whole record." Trantino V, supra, 166
N.J. at 199 (quoting Trantino v. N.J. State Parole Bd., 154 N.J.
19, 24 (1998) (Trantino IV)). See also McGowan v. N.J. State
Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). Further,
we remain mindful that "[t]o a greater degree than is the case
with other administrative agencies, the Parole Board's decision-
making function involves individualized discretionary appraisals.
"Trantino V, supra, 166 N.J. at 201 (citation omitted).
We will not second-guess the Board's application of its
considerable expertise unless we find the decision was arbitrary
and capricious. Ibid. The burden is on the appellant to prove
the Board acted unreasonably. Bowden v. Bayside State Prison, 268
N.J.Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J.
469 (1994).
Parole reviews are guided by N.J.S.A. 30:4-123.53(a), which
states that an adult inmate shall be released on parole at the
time of eligibility unless the statutorily required report or
information disclosed during the parole hearing "indicates by a
preponderance of the evidence that there is a substantial
4 A-0879-15T4 likelihood that the inmate will commit a crime under the laws of
this State if released on parole at such time." We have
interpreted "substantial likelihood" in the context of parole
hearings as requiring more than evidence of "potential" to engage
in further criminal activity. See N.J. Parole Bd. v. Cestari, 224
N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649
(1988). Further guidance is found in the New Jersey Administrative
Code, which provides:
(a) Parole decisions shall be based on the aggregate of all pertinent factors, including material supplied by the inmate and reports and material which may be submitted by any persons or agencies which have knowledge of the inmate.
(b) The . . . Board . . . may consider any other factors deemed relevant [.]
[N.J.A.C. 10A:71-3.11.]
Consequently, a decision to grant parole release is multi-
faceted, and reflects consideration of various factors, some of
which are objectively verifiable along with a discretionary
assessment of the inmate's likely future behavior based upon the
Board's experience. See Greenholtz, supra, 442 U.S. at 9-10, 99
S. Ct. at 2105, 60 L. Ed. 2d at 677; Puchalski v. N.J. State
Parole Bd., 104 N.J. Super. 294, 299-300 (App. Div.), aff'd by
55 N.J. 133 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841,
5 A-0879-15T4 26 L. Ed. 2d 270 (1970). "Common sense dictates that [the Board's]
prediction as to future conduct and its opinion as to compatibility
with the public welfare be grounded on due consideration of the
aggregate of all the factors which may have pertinence." Beckworth
v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973). Other
appropriate factors the Board may consider pursuant to N.J.A.C.
10A:713.11(b), include: (1) the nature and pattern of previous
convictions; (2) adjustment to previous probation, parole, and
incarceration; (3) aggravating and mitigating factors surrounding
the offense; (4) parole plans and the investigation thereof; and
(5) evidence presented by the appropriate prosecutor's office.
N.J.A.C. 10A:71-3.11 (b).
Thus, we review appellant's claims under well-established
standards. In doing so, we reject appellant's challenge to the
facts considered by the Board in reaching its determination and
conclude that denial of parole was based on substantial evidence
in the record and the reasoned exercise of the Board's broad
discretion. Monks, supra, 58 N.J. at 242.
The Board's conclusion that appellant posed a moderate risk
of recidivism if released was reached after weighing the mitigating
factors against appellant's past criminal record, as well as the
fact that prior incarceration and parole failed to deter further
criminal behavior by appellant. It also considered appellant's
6 A-0879-15T4 inability, after thirty-five years of incarceration, to gain an
understanding of the violent and reactionary behavior manifested
in the brutal murder of his two victims. The Board additionally
relied upon its evaluation of appellant's parole hearing wherein
it was revealed that after detailed and extensive questions were
posed to appellant by the Board Panel, appellant was "unable to
provide any coherent explanation for, or account of, the two
murders that [he] committed, other than to say that [he] was 'high
on drugs', that [his] 'brain wasn't thinking,' and that [he made
'bad decisions.'"
The Board found these responses indicative of a lack of
insight and supportive of the two-member Board Panel's conclusion
that there is a substantial likelihood appellant would engage in
further criminal activity if released on parole at that time, as
well as its imposition of the 120-month FET. In short, based upon
substantial credible evidence in the record, the Board acted
reasonably when it denied appellant's parole release and extended
his FET.
Affirmed.
7 A-0879-15T4