Trantino v. New Jersey State Parole Board

687 A.2d 274, 296 N.J. Super. 437, 1997 N.J. Super. LEXIS 23

• Court: New Jersey Superior Court Appellate Division
• Decided: January 15, 1997
• Status: Published

Opinions

The opinion of the court was delivered by

STERN, J.A.D.

Thomas Trantino was convicted of murder in 1964 and sentenced to die. The conviction was affirmed on direct appeal. State v. Trantino, 44 N.J. 358, 209 A.2d 117 (1965), cert. denied, 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966), reh’g denied, 383 , 86 S.Ct. 901, 15 L.Ed.2d 679 (1966). While our Supreme Court has found that Trantino “killed two police officers in 1963,” In re Trantino Parole Application, 89 N.J. 347, 352, 446 A.2d 104 (1982), and that “Trantino was guilty of two murders,” id. at 375, n. 9, 446 A.2d 104, it is undisputed before us that the indictment alleged only one count of murder and that only one sentence for murder was imposed.¹ Thus, when the Supreme Court invalidated the statute under which the death penalty for first degree murder was imposed, N.J.S.A 2A:113-A (now repealed), Trantino’s death penalty was converted to a single sentence of life imprisonment. State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1972), cert. denied, sub. nom. New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972). Under the Supreme Court’s mandate, Trantino was “sentenced to life imprisonment, nunc pro tunc, as of the date the life sentence was initially imposed, the defendant to be entitled to the same credits as if initially sentenced to life imprisonment.” Id. at 67-68, 286 A.2d 55. As a result of that sentence, “Trantino became eligible for parole in 1979,” Trantino Parole Application, supra, 89 N.J. at 352, 446 A.2d 104, because a person sentenced to life imprisonment under N.J.S.A. 2A:113-4 was eligible for parole after twenty-five years less commutation time and work credits. N.J.S.A 30:4-123.11 (repealed).

This appeal deals principally with the Parole Board’s April 1996 decision to deny Trantino parole and to fix a future parole eligibility date (FET) of ten years hence.

I.

The facts regarding the brutal slayings of Sergeant Peter Voto of the Lodi Police Department and police trainee Gary Tedesco are detailed in Chief Justice Weintraub’s opinion affirming the conviction:

On the evening of August 25, 1963 Trantino and Frank Falco committed a robbery in Brooklyn, following which they and some companions went to the Angel Lounge, a tavern in Lodi, New Jersey, for pleasure. During the early morning of the 26th, Trantino or someone else fired two shots in horseplay. Sergeant Peter Voto of the Lodi Police Department and Gary Tedesco, a young man who was about to be appointed a patrolman and who accompanied Sergeant Voto for a view of police routine, entered the tavern, presumably to investigate the report of gunfire.

Voto and Tedesco had been in the tavern earlier that morning. On the further visit following the gunfire just mentioned, Voto asked all of the patrons to establish their identity. Following inspection of identifying papers, Voto found a gun wrapped in a towel. Trantino thereupon seized the officer from behind, placed a gun to his head, cursed him and shouted that he would die. He ordered Voto to undress. Voto did so slowly, and as he did Trantino struck him repeatedly with the gun, forcing him to his knees. When Tedesco, who had gone out for a searchlight, re-entered, he was seized by Falco. Tedesco too was ordered to undress, and he did promptly. With Voto partially undressed and on the floor, almost unconscious from the blows, and with Tedesco stripped to his shorts, Trantino fired a number of shots at both, killing them almost instantly. There was testimony that Falco shouted to Trantino, “You’re crazy. What are you doing? You’re crazy,” to which Trantino replied, “We are going for broke. We are burning all the way. We are going for broke.”

Trantino and Falco fled, both returning to New York City. Falco was killed there a few days later by police officers who were trying to apprehend him. Trantino surrendered to New York authorities and was extradited to this State.

The resume of events given above was the State’s version of the murders. In his defense Trantino testified that on the 25th he took two dexedrine pills and consumed a considerable quantity of liquor from the afternoon of that day to the time of the homicides on the 26th. He denied any recollection of the slaying of the officers, saying he recalled only a loud explosion, followed by a confusion of wild sound and light within which Falco appeared to be a devil with arched eyebrows. He claimed he next recalled entering the car of a Mrs. Norma Jaconnetta (she left the tavern hurriedly after the shooting) and leaving the car with Falco when she was unable to start it. He related a frenzied flight to the home of a Mrs. Patricia MacPhail (she too had been at the Angel Lounge and had left just before the officers were shot), and described the drive with her help to New York. He insisted those events were heavily clouded.

Although Trantino thus disavowed awareness of the homicides, Mrs. MacPhail testified he told her the policemen were killed, at first saying that Falco had killed them and later saying during the ride to New York City that it was he, Trantino, who had slain them and that he did so to help Falco who was wanted for murder in New York.

[State v. Trantino, supra, 44 N.J. at 361-63, 209 A.2d 117.]

The insanity defense was rejected at trial, and the Supreme Court questioned the sufficiency of the proofs to support its consideration. Id. at 367, 209 A.2d 117. The opinion noted that the diagnosis of defendant’s expert “was sociopathie-personality disturbance, drug and alcoholic addiction with emotional instability, and depressive reaction, situational in character.” Id. at 365, 209 A.2d 117. The facts regarding the murder, the diagnosis and Trantino’s denial of recollection at trial each have significance with respect to the decision of the Parole Board before us.

II.

In 1980, Trantino was granted parole with restitution imposed as a special condition. However, the Law Division refused to set the amount of restitution in a murder case, and a number of issues had to be resolved in light of the adoption of the Parole Act of 1979, N.J.S.A. 30:4-123.45 et seq., L. 1979, c. 441, § 1 et seq., which had taken effect. In Trantino Parole Application, supra, the Supreme Court interpreted the Parole Act of 1979, a provision of which provides that inmates sentenced to life imprisonment pursuant to N.J.S.A 2A:113-4 were not to be eligible for parole as provided in the new Act. Rather, their parole eligibility was to be computed pursuant to the 1948 Parole Act, N.J.S.A. 30:4-123.1 et seq. (repealed), which was in effect at the time of the murders committed by Trantino. See N.J.S.A 30:4-123.51(j).

In Trantino Parole Application, supra, the Court analyzed the impact of the Parole Act of 1979 with respect to Trantino as a Title 2A offender and the decision to parole Trantino. The Court concluded that restitution could be imposed as a condition of parole for an inmate convicted of homicide based on specific criteria, id. at 361, 446 A.2d 104, but that the Parole Board imposed restitution as a condition of parole in Trantino’s case based on standards which were “much too imprecise and broad.” Id. at 363, 446 A.2d 104. Because “[t]he imposition of restitution as a parole condition in [Trantino’s] case was not an independent, severable or free-standing factual determination made by the Board,” id. at 364, 446 A.2d 104, the Supreme Court concluded that “modification of the Board’s imposition of restitution as a condition of parole puts an entirely different cast upon its ultimate determination that there is no substantial likelihood that Trantino will commit future criminal acts if released” and determined that the Board had “the right to reconsider and redetermine” its prior determination. Id. at 364-65, 446 A.2d 104. According to Justice Handler’s opinion for the Court, “[a] new development or new evidence relating to established facts or a material misapprehension concerning an essential matter which is critical to an agency determination can constitute a reasonable basis for reconsideration by the agency.” Id. at 365, 446 A.2d 104. The Court therefore remanded the matter to the Parole Board “to reconsider and redetermine Trantino’s fitness for parole.” Id. at 377, 446 A.2d 104.

The Court also addressed the standards to be applied by the Board for purposes of making parole decisions with respect to Title 2A offenders following adoption of the Parole Act of 1979. The Court emphasized the difference in approach to the subject of sentencing and parole under Title 2A and 2C, the latter of which was adopted effective September 1,1979. N.J.S.A 2C:98^L Justice Handler explained that the 1979 Parole Act limited Parole Board discretion and embodied presumptive parole (which took into account the punitive aspects of the sentences set by the Court). Id. at 368-70, 446 A.2d 104; see also N.J.S.A 2C:43-6, 2C:43-7; N.J.S.A. 30:4-123.51. Under Title 2C, the judicial determination embodies the punitive aspects of the sentence and “[t]he parole decision must be confined solely to whether there is a substantial likelihood for a repetition of criminal behavior.” Trantino Parole Application, supra, 89 N.J. at 369, 446 A.2d 104. However, the Court further explained that the same approach was not applicable under the Parole Act of 1979 for a Title 2A offender. As noted, the 1979 Act saved from repeal the 1948 Act for purposes of parole consideration relating to Title 2A offenders. N.J.S.A. 30:4—123.51(j); see also N.J.S.A. 30:4-123.11 (repealed). According to the Court:

Thus, for an inmate, such as Trantino, sentenced to life imprisonment, the parole eligibility date arose after 25 years, “less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments.” Nevertheless, substantive parole determinations regarding such inmates are to be made by applying the new Act’s parole fitness standard. N.J.S.A 30:4-123.46. Viewed in this light, the difference between these two classes of inmates— those sentenced pre-Code and those sentenced post-Code—becomes glaringly apparent. Inmates serving sentences under the Code—post-Code inmates—will have presumptively satisfied all punitive aspects of their sentences at the time they become eligible for parole. This is not true of pre-Code inmates. The punitive aspects of their sentences will not necessarily have been fulfilled by the time parole eligibility has occurred.

[ Trantino Parole Application, supra, 89 N.J. at 369-70, 446 A2d 104.²]

The Court continued:

Contrary to Trantino’s assertions, the Parole Act does not prevent consideration of the punitive aspects of a pre-Code inmate’s sentence as they relate to the rehabilitative prospects of the inmate and his likelihood of recidivism if released____ Hence, the punitive aspects of a sentence are extremely relevant in terms of the inmate’s rehabilitation.

... We now hold that, at least with respect to pre-Code sentenced inmates such as Trantino, while the Parole Board may not determine parole release or fitness solely on grounds of the adequacy of the punishment reflected in the inmate’s prison term, the Board must consider whether the punitive aspects of a sentence have been satisfied in terms of the rehabilitative potential of the inmate. Thus, on remand in this case, the Board must reassess the punitive aspects of Trantino’s sentence in considering the extent of his rehabilitation and his fitness for parole.

On this critical point it is' necessary to underscore the gravity of Trantino’s underlying crimes since the seriousness of the offense is the main factor that creates the need for punishment____ While the gravity of the crime may not now be considered an independent reason for continuing punishment and denying parole, the Par-ole Board must nevertheless weigh the seriousness of the crime as an element in determining whether the offender’s punishment has been adequate to insure his individual progress toward rehabilitation.

In considering Trantino’s fitness for parole release, the egregiousness of his crime and the harsh sentence imposed obligate the Parole Board to weigh most scrupulously and conscientiously whether Trantino has been punished sufficiently for it to conclude with confidence that he has been rehabilitated and will not commit future crimes. Furthermore, in this regard it cannot be claimed that preCode inmates such as Trantino are being treated unfairly in comparison to inmates sentenced under the Code. If Trantino had been convicted and sentenced under the Code, it is almost certain he would not yet be eligible for parole and probably would not become eligible for many years to come.

[Id. at 369-75, 446 A.2d 104 (citations omitted).]

Thus, the Third Circuit has concluded that Trantino Parole Application, supra, requires the Parole Board to “consider both the likelihood of recidivism and whether the punitive aspects of [Trantino’s] sentence have been satisfied.” Royster v. Fauver, 775 A.2d 527 (3d Cir.1985).

After the Supreme Court remanded the case to the Parole Board in 1982, the Board imposed a ten year FET which, considering work credits and good time, made him eligible for parole again in 1988. What happened at that time is not detailed in the record, but it appears from Trantino’s brief and the transcripts of the 1993, 1994 and 1995 parole hearings before us, that although initially recommended for parole by a panel in 1988, he ultimately received a six year FET from the full Board. We affirmed the denial of parole in an unpublished opinion and affirmed the Board’s action based on its conclusions “that rehabilitation has not been sufficiently achieved and that, therefore, the punitive aspects of Mr. Trantino’s sentence have not been satisfied” and “that there also exists a substantial likelihood that Mr. Trantino will commit a crime under the laws of this State if released on parole at this time.”

Subsequently on September 18, 1991, the full Parole Board again denied parole and set a thirty-six month FET. The Board, however, recommended that the Department of Corrections (DOC) “place Mr. Trantino in a 1/2 way house,” so that the Board could ultimately “evaluate his behavior in a less structured environment.” The Board also recommended that Trantino “continue to maximize his participation in psychological counseling.” These determinations are not before us on this appeal.³

III.

Trantino now appeals from subsequent determinations including the Parole Board’s 1996 decision to deny him parole and to establish a future parole eligibility date ten years hence. He also appeals from the denial by the Law Division of his petition for habeas corpus. According to Trantino:

Before this court are appellants [sic ] appeal from the 1993 Adult Panel healings, resulting in the decision of December 17, 1993, affirmed on April 26, 1995 by the full Board; if necessary, the September 1,1994 hearing resulting in the decision of April 17, 1995, affirmed by the full Board on September 26, 1995; if necessary, the hearing of September 14, 1995 resulting in the decision of September 25, 1995. Also before this Court, again only necessary if appellant does not prevail on his challenge to the December 17, 1993 decision, is the [Department of Corrections (DOC) ] denial of transfer to a halfway house on January 2, 1994. Also before this court is the issue of whether the state habeas corpus statute, N.J.S.A 2A:67-1, is an appropriate vehicle, under the facts of this ease, for resolution of these disputes.

The Board and DOC claim that the appeal from the 1993 and 1994 decisions are moot and irrelevant by virtue of the subsequent Parole Board hearings and decisions.

In September 1995 a two-member panel of the Board denied Trantino parole and recommended another extended FET beyond the guidelines. The matter was therefore referred to a three person panel. N.J.A.C. 10A:71-3.21(d). The third member questioned Trantino extensively at a hearing conducted on December 11, 1995. However, the matter was referred to the full Board because of the lack of unanimity of the three person panel regarding the extended FET. N.J.A.C. 10A:71-3.21(d). On April 3,1996, the Board set a ten year FET. The decision was based on psychological evaluations of Trantino conducted by James Bell, a psychology consultant, and Glenn Fergusson, an MA, who were interviewed by the Board concerning their evaluations. The Board was impressed by the fact that Trantino does not take responsibility for the shootings, evidenced by his assertion to Bell that Frank “Falco shot both victims, that [he] did not discharge a gun, and that [he] left the bar before anyone was shot.” The Board expressed concern that Trantino “claimed at [his] parole hearing on September 14, 1995 that [he] could not remember details of the shooting, but [he] did remember minute details of events both before and after the murders.” Thus, the Board found that “further counseling” was essential “to gain insight into [his] role in the crimes.” In its May 20, 1996 written decision confirming the April 3, 1996 determination, the Parole Board concluded:

It is clear to the Board that despite the program participation completed by you during the years of your incarceration you still have not gained sufficient insight into your role in these crimes. Therefore, you have not achieved your rehabilitative potential and the punitive aspects of your sentence have not been satisfied and there is substantial likelihood that you would commit a crime if released on parole. Therefore, the Board believes the ten year future eligibility term is necessary in order to provide you with the opportunity to participate in appropriate psychological counselling to address your lack of responsibility and insight.

The Board emphasized its standard of review in light of the Supreme Court’s prior recognition that the Board’s “ ‘obligation to scrutinize the adequacy of Trantino’s punishment in relation to his progress toward rehabilitation should be regarded as a continuing one.’ ” Trantino Parole Application, supra, 89 N.J. at 375, 446 A.2d 104. The Board noted that there was no presumptive parole for a 2A offender, that the critical issue relating to potential lack of recidivism was to be evaluated by deciding if the inmate had reached his “rehabilitative potential,” that Trantino had not, and that the future eligibility term was, therefore, required.

Before us, the Board argues that the Supreme Court’s prior opinion requires a de novo review at each parole hearing and on that review, it is obligated to

determine if the punitive aspects of Trantino’s sentence have been satisfied such that he is truly rehabilitated and is not likely to commit crimes in the future. On this point—the sufficiency of punishment—the Parole Board may consider the kind of sentence that the inmate would likely have received under the present Code of Criminal Justice for the crimes which he committed.

[Trantino Parole Application, supra, 89 N.J. at 377, 446 A.2d 104.]

Referring to the prior Trantino Parole Application opinion, the Board notes the language of Justice Handler that “[i]f the Board determines that Trantino has not been punished sufficiently and, for that reason, as well as any others, it appears by a preponderance of the evidence that there is a substantial likelihood of future criminal activity if he is released, the Parole Board must deny parole.” Id. at 377,446 A.2d 104 (emphasis added).

The Parole Board acknowledges that the federal Constitution (art. I, § 9) would prohibit application of Title 2C parole eligibility standards with respect to parole eligibility for Trantino as a 2A offender.⁴ However, it notes that if Trantino were sentenced under the Code of Criminal Justice (Title 2C) to a non-capital sentence at the time of the 1995 and 1996 hearings, he most likely would have received two consecutive sentences with á mandatory thirty years before parole eligibility, see N.J.S.A 2C:ll-3b, and that that is a factor to be considered with respect to the sufficiency of punishment even if it is not a factor which can be considered with respect to parole eligibility. The Board further points to Bell’s psychological evaluation as constituting new evidence that lengthy psychological rehabilitation is necessary before Trantino can reach his rehabilitative potential, and that in light of Bell’s report and Trantino’s inconsistent statements concerning his recollection and culpability, the Board’s decision was not arbitrary, capricious or unreasonable.

Trantino asserts entitlement to habeas corpus and argues that the Law Division erred in not granting the writ. He also contends that the Board acted arbitrarily and capriciously in denying him parole and in fixing a ten year future eligibility date, particularly because a panel of the Board found that he was ready for parole in 1993, conditioned upon satisfactory completion of a residency in a halfway house, and that the DOC arbitrarily deprived him of the opportunity of halfway house placement by declining to transfer him there. The DOC responds by indicating that there was a good faith basis for declining the transfer, because of letters received warning of risks to Trantino and others at such a halfway house (which letters no longer exist). The Board insists that just as frustration of the condition of parole relating to restitution required a de novo review in 1982, even assuming that we can consider the 1993 action of the panel, frustration of the recommended condition of halfway house placement requires de novo review of the determination of the panel in 1993.

IV.

In its September 18, 1991 decision establishing a thirty-six month FET, the Board urged Trantino “to make every effort to achieve halfway house status in order for the Board to evaluate his behavior in a less structured environment.” Trantino immediately requested transfer to a halfway house in a letter, dated October 9, 1991, to the Superintendent of Riverfront State Prison. Trantino insists that on November 26, 1991, the Riverfront Classification Committee approved his request for transfer to the Camden Volunteers of America. However, on December 31, 1991, he was orally advised that the Prison Superintendent disapproved the request. In a letter dated April 21, 1992, the DOC advised Trantino’s attorney that the transfer “was denied placement pursuant to N.J.AC. 10A:20-4.2,” the administrative rule by which the Commissioner of the DOC or his designee has the authority to determine an inmate’s place of confinement or to transfer an inmate from one place of confinement to another.

Trantino became eligible for parole again in June, 1992. The panel deferred decision until an in-depth psychological evaluation could be held at Avenel, and thereafter pending an in-person interview with the psychologist who performed the evaluation. On April 2,1993, a hearing was conducted after which one member of the Panel, Andrew Consovoy, voted to release Trantino on parole and the other, Arthur Jones, voted to deny, believing that halfway house placement was essential to parole for someone incarcerated as long as Trantino. Consovoy was quite critical of the handling of Trantino’s case, asserting that “this ease has never been treated the same way as any other case” and that, despite the fact there is no right to parole, the case “should be treated on the merits.” He insisted that Trantino’s progress as a prisoner and his program participation warranted parole because, as he explained to Trantino, “[y]ou’ve done what you’ve needed to do, and you’ve done all you can do,” and urged him to take legal action because the halfway house application “cannot be rejected by the Department of Corrections.”

Despite a rule requiring a rehearing of a split decision before a three-member panel, see N.J.A.C. 10A:71-1.3(f), the Panel members subsequently “administratively reviewed” the April 1993 decision and determined to reconsider the decision. On November 12, 1993, another hearing was conducted before the same two-member panel. At that hearing both Mr. Consovoy and Mr. Jones were critical of the fact Trantino was not placed in a halfway house. According to Consovoy, the criticism of concern to the DOC “appears to be quite localized to Bergen County ... and to certain radio shows that seem to talk to those folks” and was irrelevant to Trantino’s placement in Camden. Jones stated:

I said I want to see you in a halfway house as an inmate before release. I think the Department of Corrections owe that to you. Okay? Based on their own standards. Based on a rehabilitative program and mode for inmates that have been incarcerated ten years, fifteen years, twenty years, thirty years, as yourself, there should be no other release method other than the gradual release process, where an inmate can gain a sense of identity, dignity and money in them pocket before they get out there.

Other than that, they’re setting you up for a failure. In your case they would have set you up to go out where you’re totally dependent upon your wife. You know? Almost totally dependent on your wife.

That is no dignity for a man or for a woman to have to be totally dependent upon another person.

And the other two is, I said the out-of-state parole plan was the best plan that I’ve seen that any inmate had had. Okay? The out-of-state plan they denied you because of what I felt is a right being denied to you by this Department of Corrections.

So the two of those together, I will contend that the two-way punitive aspect had not been satisfied based on one and two. Work release and the parole plan.

The parole plan—the second parole plan that you—that you presented, I don’t feel is capable or realistic of being accomplished, because I think it’s going to put too much pressure on you, it’s going to put too much pressure on your wife.

I would not want to see you in that. I could not vote for release to that type of a plan. And this is what I’ve contended all along.

And I would want that type of plan in place for me or for you or your son or for my son. And that has been the ball of my contention with your case. Not you per se, but with your case. And I will go on record as saying that with all of the times that you have been in minimum custody and all of the work that you’ve done inside the institution, all the programs, there is clearly no reason why you should not be in work release or a halfway house.

The panel also agreed that they saw no written reasons for the denial of halfway house status and that Trantino’s halfway house application was not denied in a proper manner. Consovoy then announced the panel’s decision to deny parole and impose a thirty-six month FET because the DOC would not grant Trantino halfway house status. They also recommended that Trantino file suit against the DOC. According to Consovoy:

Mr. Trantino, as you know the last time Mr. Jones and I saw you we had a split decision. We have reconciled that split in the following manner. I am voting for your (indiscernible) to be granted, as Mr. Jones is. On a very, very limited basis. We want (indiscernible) to be resolved, and I want you to resolve them.

If the Court tells us that in your case or any other ease we cannot—especially in a 2A case, we cannot demand a halfway house placement as a pre-condition to parole approval, then frankly the board has to deal with it as it is.

And in my opinion, in the setting you’re in and it’s also the opinion of the professionals that have evaluated you the last two times, that you have, in fact, reached your rehabilitative potential. Any inmate who’s reached his rehabilitative potential on a gratuity sentence must be paroled whether we want to or not.

But in this situation—you see, Tom, there is no legal reason for them to deny halfway house. We’ve been through that. You meet every criteria. I suggest you follow it. That you take this matter where it belongs, and I believe this matter belongs before the judicial body to referee the tug-of-war between the parole board and the DOC.

But it’s come—Tom, it’s come to the end. You’ve done your 30 years. You’ve done every program you can. You achieved full-minimum status, you’ve had full-time minimum status. If the Courts come back and tell the parole board that we can’t do what we’re trying to do, then you basically have my (indiscernible) I would to parole you. I can’t speak for anybody else. I voted to parole you last time, and you know, people (indiscernible) I think (indiscernible).

This is not what you wanted to hear, and you don’t understand this, but this is the best thing that can happen to you. It’s got to end. It’s got to end before a judge and the judge is going to tell the DOC you’re right or they’re going to tell the parole board you’re right. And then you are on the way to get out.

In its December 17, 1993 “notice of decision” the panel set the thirty-six month FET. In its opinion the panel stated:

Over the years much has been said and written concerning this crime. In the opinion of this panel, this crime can legitimately be called heinous (defined as hateful or shockingly evil). There is no dispute that two (2) unarmed men, one a police officer, were murdered. There is no doubt that Thomas Trantino shot and killed Peter Voto. There is no question that Thomas Trantino set in motion the events that led to the murder of Gary Tedesco, a young man who was not even a police officer. Mr. Trantino is responsible for the deaths of these two men and that issue is forever closed.

In that context, the Parole Board acknowledges that Mr. Trantino has made enormous progress toward reaching his full rehabilitative potential in the 30 years of his incarceration, particularly in the last 5 years. In upholding the Parole Board decision of 1988 to deny parole to Mi’. Trantino New Jersey Superior Court, Appellate Division wrote that: 'Two aspects of Trantino’s conduct particularly troubled the Board. Although apparently able to remember minute details of events that occurred before and after the shootings, he has never acknowledged that he killed the officers. Also, during his many years in prison he has never undergone drug and alcohol counseling or a long-term course of psychotherapy. Kegarding the killings, Trantino initially claimed that he fled from the nightclub before the officers were killed. In recent years he claims that because the evidence against him is overwhelming, he accepts responsibility for killing the officers, but insists that he does not recall having done so.

When the Board last denied Trantino parole in 1982, it urged him to undergo drug and alcohol abuse counseling. When the then Board Chairman met with Trantino in 1985 and urged him to undergo long-term counseling if only to enhance his chances of parole, Trantino walked out of the meeting. Trantino insists that he does not need counseling.

There is ample evidence in this record to support the Board’s concern that Trantino has been distracting himself and others with good works, and seemingly insightful expressions of his past and present condition in order to avoid coming to grips with the fact that he suffers from [ ] serious underlying personality problem that renders him a risk for parole at this time. His refusal to undergo drug counseling or long-term psychotherapy is further evidence of that conclusion.’ Mr. Trantino has in his current restricted environment, in our opinion, done his best to address these and other issues identified by the Parole Board, and the most recent professional reports reflect this progress. This panel, therefore, acknowledges that Mr. Trantino has reached his rehabilitative potential within the confines of his current state prison setting. However, given the specific facts of this particular case the absolute inability to function in society prior to this crime, even as a supervised parolee; his long and difficult path towards real and not superficial rehabilitation; with his only recently addressing some major issues; and the length of his incarceration____ [W]e believe that he cannot be judged to have reached his true and full rehabilitative potential until and unless he has achieved an intensive, therapeutic and rigorously supervised, gradual reintegration into society. In New Jersey, the only present means to achieve this crucial goal is through the placement by the Department of Corrections of Mr. Trantino in a halfway house while still an inmate.

The Parole Board firmly believes that this last and vital step must be attempted before Mr. Trantino could even be considered to be fully rehabilitated and granted parole. Although we believe that it is not unreasonable to conclude that Mr. Trantino has made impressive strides in resolving his problems and internal conflicts that led to these homicides we will only have full knowledge of this man’s rehabilitation through the reintegration process of a community based halfway house setting. In that context we can evaluate Trantino’s readjustment to societal and not institutional stresses, to societal and not institutional failures, and to societal and not institutional temptations. Only through this process can the Parole Board judge if this man has been truly rehabilitated. The Adult Panel is of the opinion that the placement of Mr. Trantino to a halfway house should be done while he is an inmate to insure the legitimate interests of all parties.⁵

The notice of decision concluded:

The Adult Panel is of the opinion that if Mr. Trantino can successfully enter and complete a correctional halfway house program as an inmate he can achieve his full rehabilitative potential and therefore will satisfy the punitive aspect of his sentence and meet the substantial likelihood test.

On November 12, 1993, after the hearing before the panel, Trantino sent a letter to the Commissioner of the DOC requesting approval of a transfer to a halfway house which he indicated had been approved by the Riverfront Institutional Classification Committee (ICC). Trantino asserts that he never received a written reply, which the two-member panel later noted to be so, but maintains he was assured of a transfer by interstate compact to a prison in Rhode Island, where his eventual placement in a halfway house would not attract attention. He insists that when news of the transfer plans was reported in the press, political pressure led the DOC to repudiate its commitment.

Trantino wrote to the ICC again on January 11, 1994, to ask for a transfer to a halfway house. The request was “denied” on February 2, 1994 with the “reasons/comments” noted “seen for community release.”

Although no clear reasons for the ICC’s decision were given to Trantino, a letter from Riverfront Administrator Donald E. Lewis to an investigator for the Internal Affairs unit of the DOC, dated June 2,1995, reported that:

On January 28, 1994, inmate Trantino made application for community release with Volunteers of America and Clinton House as his place of preferential assignments. His application was referred to the Institutional Classification Committee, chaired by Donald E. Lewis on February 2, 1994. Mr. Trantino’s request for halfway house assignment was discussed, and the committee rejected his request. The denial was is [sic ] based upon (2) factors:

1. Letters of threat, received by my office, warning that Mr. Trantino would be killed if paroled. The three (3) letters were unsigned and very crudely written. One letter was alphabetized, meaning constructed by letters cut out from magazines and newspapers to spell out the threat. The letters did not have a place of origin identifying the area where mailed. Letters were received on or about mid-January, and were shared with the Classification Committee in order to render an informed decision.

2. The committee also took into consideration the circumstances of the offense and the risk if possible adverse community reaction if inmate Trantino was permitted to participate in a residential community release program.

In considering all of the above factors, a unanimous decision was rendered by the Institutional Classification Committee, in keeping with the provisions of New Jersey Administrative Code 10A:20-4.12 which provides for Institutional Classification Committee review and disposition.

Further be advised, notwithstanding the letters of threat, inmate Trantino would have been denied based on other factors referenced under the above cited provision. As his ease has high visibility and notoriety, through the news media and through Senator Kosco who vehemently objected to the parole and community release of inmate Trantino.

In concluding this report, the letters of threat have been misplaced, as it is my recollection that they were to be processed to Internal Affairs; however, this is a standard procedure, and it is possible that they were misdirected. For your further review and assistance, I have Mr. Trantino’s application, classification blocks and reports to Senator Kosco all addressing the situation of inmate Trantino’s parole.

On September 1, 1994, Trantino’s parole was again denied and he received another thirty-six month FET. At that hearing Mr. Jones was replaced by Mr. Rolando Gomez Rivera. The hearing concentrated on Trantino’s background and the events surrounding the crime. Consovoy was again critical of the DOC, stating “most people would agree that the Department of Corrections has just made a mess of this thing because they’ve never decided how to treat you,” that the decisions not to accord halfway house status was inconsistent with the two furloughs and sixty-nine trips into the community that had been granted, but that the Board had voted that it was not going to parole Trantino to a halfway house because the DOC had an obligation to place him there as an inmate. At the hearing Trantino accepted responsibility for the crimes, and stated intimate details of the events before and after the shootings, but denied recollection relating to the shootings themselves.

On March 18, 1995, not having received a written decision from the September 1, 1994 hearing, as required by N.J.S.A. 30:4— 123.55(d) and N.J.A.C. 10A:71-3.18(e), Trantino filed administrative appeals to the full Parole Board from the November 12, 1993 and September 1, 1994 denials. See N.J.AC. 10A:71-4.2. In the absence of a response, Trantino filed a petition for a writ of habeas corpus in the Law Division. The court denied the application because of lack of jurisdiction.

On April 17, 1995, the two-member panel rendered reasons for its decision following the September 1, 1994 hearing. The opinion concluded that:

After due consideration and deliberation, the Adult Panel has concluded that Mr. Trantino has not reached his full rehabilitative potential, therefore the punitive aspect of his sentence has not been satisfied, and that a substantial likelihood that he will commit a crime if released on parole at this time continues to exist, and parole is denied. This panel has established a Future Eligibility Term of thirty-six (36) months, within the established guidelines for the crime of murder.

During this panel hearing Mr. Trantino was once again in doubt as to whether he in fact murdered the police officers, stating “I am not capable of lulling those two men. I could not have done that.” This is of great concern to this panel. Until and unless Mr. Trantino can completely, honestly, openly and consistently confront and fully admit his role in these murders, he can not be said to be completely and totally rehabilitated as per the Court’s holding in the original Trantino decision.

The Adult Panel acknowledges Mi-. Trantino’s charge free institutional adjustment, program participation and full minimum custody in mitigation.

The parties now agree that the opinion misquotes Trantino and mischaracterizes what he said at the September 1, 1994 hearing. Trantino appears to have said that he is not now capable of committing murder and does not remember having been so in the past; but if he did state previously that he could not have done the things for which he was sentenced, he was merely “being defensive.” In any event, on April 26, 1995 the full Board considered and denied, without comments, the administrative appeals from the November 12, 1993 and September 1, 1994 panel determinations. Trantino thereupon appealed to us, challenging the various decisions along the way.

On May 8, 1995, Trantino, in a letter to the Chairman of the Parole Board, requested an appeal of the Panel’s April 17, 1995 decision noting that the Board erroneously relied on the nonexistent quote from the September 1, 1994 hearing. He proffered additional evidence that he acknowledged that he killed the two police officers and that he was deeply ashamed and suffers for what he did. By letter dated September 6,1995, the Parole Board advised Trantino that the two-member adult panel, at a meeting on August 30, 1995, determined to vacate its September 1, 1994 decision and relist the case for a de novo panel hearing on September 14, 1995. Because Trantino was already scheduled for a new parole hearing in October, having become parole eligible again in the interim, the two hearings were combined. The September 6, 1995 letter from the Chair of the Parole Board also stated that the full Board did not consider the issues raised in Trantino’s May 8 letter but that it had reevaluated the action it took on April 26,1995, and stated that:

In view of the excessive time period that elapsed prior to your submission of the administrative appeal of the November 12, 1993 decision, the State Parole Board determined that it should not have considered your appeal at its meeting on April 26, 1995. Accordingly, the State Parole Board on August 30, 1995 vacated its decision of April 26,1995.

Because of the scheduling of a hearing for September 1995, the appeals pending before us were dismissed, without prejudice, while Trantino exhausted his administrative remedies. In our order of August 16,1995, we provided that Trantino could raise all issues respecting all adverse actions by the Parole Board commencing with the December 1993 decision (resulting from the November 12, 1993 hearing) in the event that he remained aggrieved by the Parole Board’s action after the September 1995 rehearing.

A two-member adult panel conducted a plenary hearing on September 14, 1995. It essentially covered the subjects discussed at the hearing in September 1994, Trantino’s childhood, his family background, his criminal history and associations, the robbery in Brooklyn before the shootings in question, Trantino’s flight, his trial and programs in prison, his television interviews, his writings, and his parole plan.

The panel denied parole, and Trantino was informed that the panel intended to “exceed the guidelines,” and establish a future eligibility term greater than thirty-six months, and so would be bringing in a third member as required by the regulations. See N.J. A C. 10A:71-3.21(a)(l),(c),(d).

The written notice of decision regarding the September 14,1995 hearing, dated September 25, 1995, acknowledged that Trantino had made great strides towards achieving his rehabilitative potential over the course of the preceding thirty-two years, but forrad that his rehabilitative potential had not been reached due to his failure to remember certain aspects of the crime. The decision stated:

It is the Panel’s belief that your failure to remember certain details regarding the murder is inhibiting you from reaching your rehabilitative potential. In sum, the Adult Panel is of the position that until you can remember specific events regarding the murder, including firing the gun that killed Sgt. Voto, you will not be able to fully accept your role in the crime and will not achieve your rehabilitative potential. Therefore, the Panel believes there is a substantial likelihood you will commit a crime if released on parole. The Adult Panel is of the belief that based on the severity of the crime for which you were sentenced, your prior criminal record, and your need for long term counseling, a future eligibility date established pursuant to N.J.A.C. 10A:71-3.21(a) is clearly inappropriate. Therefore, the Adult Panel is referring your case to a three member panel for establishment of a future eligibility date beyond code guidelines, pursuant to N.J.AC. 10A:71-3.21(d). It is the Adult Panel’s belief that a future eligibility term pursuant to N.J.AC. 10A:71-3.21(d) will allow you the opportunity to undergo long-term psychological counseling. Hopefully, this counseling will aid you in your attempt to remember specific details regarding the shooting of Sgt. Voto and other events that took place immediately before and after the murders.

The opinion further notes that, according to the Supreme Court decision in Trantino Parole Application, supra, the Parole Board’s obligation to scrutinize the adequacy of appellant’s punishment in relation to his progress toward rehabilitation is a “continuing” one. Referring to the 1998 proceedings, the panel stated:

The Adult Panel is aware that a different Board Panel determined at your parole hearing on November 12, 1993 that you had reached your rehabilitative potential within the confines of prison and that your progress toward real and not superficial rehabilitation could only be maintained by placement in a halfway house as an inmate. You have attempted on numerous occasions to be placed in a halfway house as an inmate. The Department of Corrections has continually denied you placement into a halfway house. While this Adult Panel believes placement of you into a halfway house would be beneficial to you in your goal to reach your rehabilitative potential, it is this Panel’s determination that certainly this is not the only means by which you can achieve this goal. It is this Panel’s position that you can eventually reach this goal through long term psychological counseling in an institutional setting.

Finally, because the panel concluded that Trantino had “not reached [his] rehabilitative potential [and] the punitive aspect of [his] sentence has not been satisfied,” it found a substantial likelihood that Trantino would “commit a crime if released on parole.” Because “long term psychotherapy” was required, the matter was referred to a three-member panel to fix a FET outside the guidelines. N.J.A.C. 10A:71-3.21(a), (c), (d). The three-member panel conducted another hearing in December 1995, at which the third member interviewed Trantino essentially about the same subjects previously reviewed with the other two. However, the three-member panel failed to unanimously agree on the future parole eligibility date in excess of the guidelines and referred the matter to the full Parole Board pursuant to N.J.A.C. 10A:71-3.21(d).

On April 3,1996, the full Board voted to impose a ten year FET. On May 20,1996, the full Parole Board issued a written “notice of decision” formally denying parole and establishing the ten year term. In the interim, we reinstated the appeals.

V.

We agree with the Law Division that it did not have jurisdiction to hear this case under the New Jersey habeas corpus statute, N.J.S.A 2A:67-1 et seq.

The exclusive method for review of action or inaction of a State administrative agency, like the Parole Board, is by direct appeal to us, pursuant to R. 2:2-3(a)(2). Johnson v. State Parole Bd., 131 N.J.Super. 513, 517-20, 330 A.2d 616 (App.Div.1974), certif. denied, 67 N.J. 94, 335 A.2d 47 (1975). The Supreme Court has exclusive rule making power to implement the constitutional requirement for “review, hearing and relief’ in the Superior Court by action in lieu of prerogative writs, N.J. Const., art. VI, § V, 114, and R. 2:2-3(a)(2) embodies the means for reviewing inaction as well as action of a State administrative agency, Johnson, supra, 131 N.J.Super. at 517-18, 330 A.2d 616.

The writ of habeas corpus preserved by our Constitution, Art. I, par. 14, is a “common law ... prerogative writ.” Johnson, supra, 131 N.J.Super. at 519, 330 A.2d 616. But when habeas corpus is sought because of illegal detention by the DOC or the Parole Board, the applicant must appeal from the agency’s action or conduct in holding the prisoner. When we cannot decide how to exercise our prerogative writ jurisdiction in the absence of a record detailing the reasons for administrative action or inaction, we can remand to the agency for a statement of reasons, for further action by the agency, or can permit the Law Division to create a record and make fact-finding, at least when the matter is not cognizable, pursuant to legislation, before an Administrative Law Judge. Cf. Township of Montclair v. Hughey, 222 N.J.Super. 441, 537 A.2d 692 (App.Div.1987) (finding “the exercise of trial court functions such as the gathering of evidence, finding of facts and the application of legal conclusions” necessary). R. 4:69-1, dealing with actions “In Lieu of Prerogative Writs,” expressly provides that the Law Division has habeas corpus jurisdiction only where relief is “not available under R. 2:2-3.”

VI.

We briefly restate our scope of review of a Parole Board decision. Although speaking in the context of a Title 2C sentence, we set forth our limited role in N.J. State Parole Bd. v. Cestari, 224 N.J.Super. 534, 547, 540 A.2d 1334 (App.Div.), certif. denied, 111 N.J. 649, 546 A.2d 558 (1988):

A denial of parole is subject to judicial review for arbitrariness. In re Hawley, 98 N.J. 108, 112-113 [484 A.2d 684] (1984). The question whether there is a substantial likelihood an inmate will commit another crime if released, although predictive of future conduct rather than a finding as to past conduct, is essentially factual in nature. Therefore, a reviewing court must determine whether this factual finding could reasonably have been reached on sufficient credible evidence in the whole record. Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 92-93 [312 A.2d 497] (1973). Under this standard, the agency’s decision will be set aside “if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.” 813 Corp. v. State of N.J., Div. of State Lottery, 210 N.J.Super. 485, 495 [510 A.2d 103] (App.Div.1986). “This sense of “wrongness’ arises in several ways, among which are the lack of inherently credible supporting evidence, the obvious overlooking or underevaluation of crucial evidence or a clearly unjust result.” Ibid. Thus, if the record does not contain sufficient evidence that there is a substantial likelihood an inmate will commit another offense if released, the denial of parole must be found to have been arbitrary and capricious.

[N.J. State Parole Bd. v. Cestari, supra, 224 N.J.Super. at 547—48, 540 A.2d 1334.]

Even though the discretion of the Parole Board is broader with respect to a Title 2A sentence, the scope of review of that discretion is the same. The issues before us on review from both the Parole Board and DOC remain the same.

We reject the contention that a more restrictive standard of judicial review should apply to parole release [or denial] than to other administrative agency decisions. Derisions of administrative agencies are generally subject to a uniform standard of review; such a decision will be upheld unless “it is arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole.” Henry v. Rahway State Prison, 81 N.J. 571, 579-580 [410 A.2d 686] (1980). Consistent with this generally accepted standard, the Supreme Court said in Hawley that: “We find no reason to exempt the Parole Board from the well-established principle that a court may review the actions of an administrative agency to determine if its power is being exercised arbitrarily or capriciously.” [In re Parole Application of Hawley,] 98 N.J. 108, 112 [484 A.2d 684]. We add that application of a more restrictive standard of review to decisions of the Parole Board would be inconsistent with the Parole Act of 1979’s objective to reduce the discretionary authority of the Board. See In re Trantino Parole Application, supra, 89 N.J. at 355-356 [446 A.2d 104],

[N.J. State Parole Bd. v. Cestari, supra, 224 N.J.Super. at 548, n. 6, 540 A.2d 1334.]

VII.

The Attorney General takes the position that the administrative appeal of the panel decision issued December 17, 1993, denying parole in the absence of halfway house placement, was time barred by the 180-day rule, N.J.AC. 10A:71-4.3(a), and therefore is not properly before this court on appeal. He also contends that the appeal from the ICC’s decision of February 2, 1994 was untimely, see R. 2:4-l(b); R. 2:4-4(a), and that, in any event, the pre-1995 proceedings are' moot in light of the Board’s subsequent hearings and determinations.

The Attorney General candidly acknowledges that no time limit for administrative appeals to the full Board existed before 1995.⁶ Moreover, in 1993 and 1994 Trantino was seeking to implement the recommendation for halfway house placement and challenging the denial of parole in its absence. Further, the 1995 panel decision affirmed by the full Board in 1996 concluded that long-term psychotherapy was needed because the DOC “continually denied” placement in a halfway house and that such placement “is not the only means by which [Trantino] can achieve [rehabilitative potential].” Hence, the issues relating to halfway house placement are still relevant, and we need not explore at length whether the ICC’s determination constituted final administrative action, whether Trantino exhausted administrative remedies if it did not, and in any event whether he received timely notice or adequate reasons to trigger any applicable time period for appeal. See N.J AC. 10A:20-4.10(d), 10A:20-4.12(f). The 1994 denial of halfway house placement clearly impacts on the 1995 and 1996 decisions regarding parole, and the Parole Board decisions also impacted on the subsequent eligibility for halfway house placement. See N.J.AC. 10A:20-4.7(a).

The DOC’s decision not to transfer Trantino to a halfway house was never embodied in any final determination of the agency. Cf. Jenkins v. Fauver, 108 N.J. 239, 528 A.2d 563 (1987) (upholding DOC transfer of inmates from full minimum status to full minimum-inside only); see also White v. Fauver, 219 N.J.Super. 170, 530 A.2d 37 (App.Div.1987). Certainly the words “seen for community release” were not reasons, as the Board panel subsequently told Trantino. Nor can the letter from Riverfront Administrator Lewis to a DOC investigator suffice as the final administrative action or substitute for the necessary statement of the reasons for the decision. See N.J.A.C. 10A:20-4.10(d). The Commissioner is responsible for the final agency determination, and we eannot find in the record any reasons rendered by him or his office for the decision not to transfer Trantino.

However, N.J.AC. 10A:20-4.12 places authority for such transfer decisions in the ICC. Thus, even if its determination is final on such matters, see N.J. State Parole Bd. v. Cestari, supra, 224 N.J.Super. at 542, n. 2, 540 A.2d 1334, the decision (embodied in a memorandum filed in June 1995, almost one and one-half years after it was rendered) was based on letters not produced in the record and which we are told were “misplaced.” The decision was also premised on the fact that Trantino’s case had “high visibility and notoriety, through the news media and through Senator Kosco who vehemently objected to the parole and community release of inmate Trantino.” These reasons embodied in an internal DOC memo, without a supporting record (or reconstruction) simply cannot be the basis for denying transfer when the Parole Board considered such placement critical to the parole process. See N.J.A.C. 10A:20-4.10(d), -4.12(f).

Our Supreme Court has already stated “that public outrage over an imminent parole determination, such as that which has occurred in this case, has no place in a parole proceeding and is to be given no weight in a parole decision.” Trantino Parole Application, supra, 89 N.J. at 376, 446 A.2d 104. We do not necessarily read the decision as applying to the ancillary DOC decision making incident to the pre-parole process.⁷ And it cannot matter if the public outrage is voiced directly or through a State Senator. However, as Parole Board member Consovoy made clear, the “adverse community reaction” has to relate to the area where the placement will occur. N.J.AC. 10A:20-4.12(e).

That is not to say that threats to an inmate, or to others with whom he would be in close proximity outside the security of prison, is not a legitimate basis for DOC decision making. But such a decision so critical to the parole process cannot turn on an internal memorandum supported by no record when the. documents themselves cannot be reviewed by DOC superiors or the courts of competent jurisdiction.

Accordingly, we remand to the DOC for consideration of an updated application for halfway house (or out-of-State transfer) and for findings and a statement of reasons with regard to such application. If the decision is premised, in whole or part, on concerns for the safety of Trantino or others, it must state reasons for the DOC’s conclusions that the threats are real and why the safety of Trantino and others cannot be reasonably protected with available resources. The public may be reasonably outraged by Trantino’s lawless conduct, but it cannot be presumed that those so outraged will resort to the type of conduct they find so offensive.

We recognize that halfway house placement does not involve a liberty interest giving rise to due process rights. Jenkins v. Fauver, supra; Dominique v. Weld, 73 F.3d 1156 (1st Cir.1996); O’Neal v. New Jersey State Parole Bd., 149 N.J.Super. 174, 181, 373 A.2d 657 (App.Div.), appeal dismissed, 75 N.J. 590, 384 A.2d 821 (1977); see also Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981); New Jersey State Parole Bd. v. Byrne, 93 N.J. 192, 206-07, 460 A.2d 103 (1983) (regarding parole). But our regulations require a statement of reasons for the denial of halfway house placement, N.J.AC. 10A:20-4.10(d), and given the relation between this subject and the Parole Board’s action for approximately six years, we conclude that reasons for the DOC action or inaction on the subject are required. Cf. Beckworth v. New Jersey State Parole Bd., 62 N.J. 348, 301 A.2d 727 (1973); Monks v. New Jersey State Parole Bd., 58 N.J. 238, 277 A.2d 193 (1971) (holding that statement of reasons given to inmate met judicial requirements); see also N.J.A.C. 10A:71-3.18(b) (effective February 21,1995).

Finally, we reject our dissenting colleague’s conclusion that we should order the Parole Board to parole Trantino to a halfway house or residential facility inside or outside of New Jersey if the DOC does not perfect a pre-release placement “on a timely basis.” (Opinion at 489, 687 A.2d at 303). As we have already noted, in footnote five, supra, N.J.SA 30:4-123.59(d) authorizes the Board to grant parole conditioned upon placement in a residential facility or halfway house. But Trantino does not argue, and we find no authority to support a claim, that the DOC approval for such placement is unnecessary. See N.J.A.C. 10A:20-4.1 et seq.; 10A:71-3.18(b). In any event, the record details the consistent position of the Board that it cannot prudently grant parole to a long term prisoner, convicted of a crime such as murder, before performance in a halfway house or residential facility can be thoroughly evaluated. And we cannot say that this policy is arbitrary or unreasonable. While the failure to successfully satisfy a condition of parole would require formal violation of parole proceedings before returning the parolee to custody, the same conduct before parole would not, and evaluation of an inmate’s conduct in such a setting is, in any event, valuable in assessing whether or not the inmate is ready for parole and the conditions to be attached.

VIII.

The Parole Board cannot ignore the prior history of the case by looking at the 1995 and 1996 proceedings in isolation. However, the Board concluded that long-term psychological therapy is required in the institutional setting, particularly because halfway house placement and evaluation are unavailable, and a ten year FET was set “in order to provide you with the opportunity to participate in appropriate psychological counseling to address your lack of responsibility and insight.”

Before us the Board appears to take the position that new evidence must support a basis for a denial of parole and future FET following expiration of a prior FET. See N.J.S.A. 30:4-123.53; 30:4-123.56; see also N.J. State Parole Bd. v. Cestari supra, dealing with a Title 2C sentence. N.J.S.A 30:4-123.56(c) provides that “[a]n inmate shall be released on parole on the new parole eligibility date unless new information filed pursuant to a procedure identical to that set forth in [N.J.S.A. 30:4-123.54] indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time.” However, given the different standards for parole for Title 2C sentences, which are subject to presumptive parole, and Title 2A sentences as construed in Trantino Parole Application, supra, we do not believe N.J.S.A. 30:4-123.56(c) is dispositive with respect to a 2A sentence. See also Byrne, supra.

In any event, to support its conclusion that new evidence justifies its decision, the Board points to a paragraph in a psychological report prepared by Bell in July 1995 that Trantino “believes that his co-defendant shot the victims but cannot recall specific aspects of the event, because he was in an alcohol/speed blackout.” The Board also noted that in its interview with Bell, the psychology consultant noted “that there were a lot of fluctuation in definition of several events, several aspects of this event including taking responsibility for the shooting....” Fergusson, who conducted a psychological evaluation on August 8, 1995, noted that:

Thomas also described vivid visual hallucinations on the night of the present offense which have previously been called into question, as to their authenticity, particularly in light of his inability to recall the offense itself. While it is unquestionable that hallucinations can be fabricated, given the extent of his alcohol and amphetamine consumption at the time, it is also quite conceivable that Thomas was experiencing a drug induced psychotic state when he committed the offense. The existence of a psychotic break could also explain how Thomas could commit a crime, so contrary to his moral character. The incongruence between his moral values and the brutality of his actions during the offense may also explain the level of repression that Thomas reports for the actual offense itself, while retaining clear memories of events both prior to and following the actual offense.

As Chief Justice Weintraub pointed out in 1965, Trantino testified that he could not recall the events of the crime due to his intoxication and mental condition. As we have demonstrated, Trantino maintained the same position throughout. In the transcripts of the hearings of April 1, 1993, November 12, 1993, September 1, 1994, September 14, 1995, and December 11, 1995 presented to us on this appeal, Trantino repeatedly talks about and is questioned by Board members regarding what he can and cannot remember. The fact that Trantino said he takes “responsibility” for his conduct, but does not recall the specifics of the shootings—or states that he may have left the site by the time one or both shootings actually occurred—does not by itself constitute a “new factor.”⁸ But what is “new” is the Board’s finding, following recent interviews with Trantino, regarding the significance of the facts Trantino recalls and those he says he cannot recall—a position evidencing lack of candor or credibility impacting on the “likelihood of future criminal activity if he is released.” See Trantino Parole Application, supra, 89 N.J. at 377, 446 A.2d 104.

This is not the occasion for us to consider the legal consequences which can flow in the parole context from a defendant’s insistence that a plea of not guilty was properly entered or that he was wrongly convicted. See Paz v. Warden, Fed. Correctional Inst., 787 F.2d 469 (10th Cir.1986). Nor is it a case where the inmate asserts no recollection at all due to repression or in which he offers expert proofs why he can remember certain significant details while having no recollection of others.

This is a case in which the Parole Board found that Trantino provided certain details in recent interviews and hearings that are inconsistent with his assumption of responsibility for the deaths of Voto and Tedesco and particularly the shooting of Voto. Much of the discussion at the parole hearings and in the Parole Board’s interview of Bell seems to stem from differing understandings of the meaning of the word “responsibility.” Trantino appears to acknowledge “responsibility” based on what he recalls and what he has learned, while denying recollection of certain details and disagreeing with trial witnesses about others. However, the Board has also found that, at least with respect to some of the details Trantino has given its hearing officers and professional interviewers, that his lack of recollection about some things and his specific recollection about others are not always consistent.

That view gains some support from a review of Chief Justice Weintraub’s description of Trantino’s trial testimony, supra, and his testimony before the panels. Moreover, what Trantino seems to remember at the 1994 and 1995 hearings, for example, that he dropped his gun after he hit Voto with it, that Falco ordered Voto to strip, and regarding where he may have been at the time of the shooting can be said to be inconsistent with his true acknowledgement of responsibility. But even if we were to disagree with the Board in this respect, the judgment is not ours to make. We must defer to the Board’s interpretation and analysis because the Board, not this court, is charged with the responsibility of evaluating credibility in the context of the potential for recidivism.

Mr. Bell diagnosed Trantino as having an “anti-social character” and Fergusson noted an “antisocial personality disorder.” Both stated that he functioned well in the institutional setting, but expressed some concern about direct release on parole from his lengthy incarceration without adequate support and preparation. Fergusson recommended ISP supervision and noted that “the halfway house system [would be] another addition to the support system” and “a testing ground also.” He noted that “[a]ny weakening in the support network or evidence of relapse into substance abuse could lead to disastrous results.” Particularly in light of the Parole Board’s inability to observe Trantino in a halfway house program, the denial of parole and ten year FET cannot be said to constitute an abuse of discretion. See Trantino Parole Application, supra, where the Parole Board was required to review the question of parole de novo in light of frustration of the restitution condition. See also Thompson v. New Jersey State Parole Bd., 210 N.J.Super. 107, 111-15, 509 A.2d 241 (App.Div.1986) (denial of parole with twenty-two month FET in 1982 and twelve year FET in 1984 for Title 2A offender convicted of murder sustained over ex post facto claim and other challenges).

In Royster v. Fauver, supra, the Third Circuit rejected a challenge on ex post facto grounds to a nine year FET imposed in 1983 upon an inmate convicted of murder under Title 2A. 775 F.2d at 531-32. The Parole Board “noted that Royster had continually denied his guilt despite overwhelming evidence against him ... and it suggested that this had been a factor in denying Royster his parole.” 775 F.2d at 534. According to the court:

Because an inmate’s contrition and the gravity of his crime are relevant to the determination of whether the punitive aspects of his term have been served, the Board’s consideration of these factors was appropriate. Ibid.

Our courts have not passed upon the application in a Title 2A case of the FET guidelines involving presumptive parole for Title 2C offenses. It is arguable they should not apply because of the discretion accorded to the Board in Title 2A cases under Trantino Parole Application, supra. But even if they apply, the extended FET established in this case cannot be said to be arbitrary or capricious.

The Attorney General has estimated that, with credits, the ten year FET will result in Trantino’s eligibility for parole in “October 2000, approximately 5 years after his parole denial.” Moreover, in its 1996 opinion the Board pointed out that the ten year FET does not mean the matter will not be regularly reviewed. As the full Board stated in its 1996 notice of decision to Trantino:

Pursuant to N.J.AC. 10:71—3.21(f) you are entitled to annual review hearings. At an annual review hearing, a Board panel will be able to assess your progress in various programs, including counseling, which may indicate that the punitive aspects of our sentence have been satisfied. At the conclusion of an annual review hearing, the Board panel shall have a number of options available including, but not limited to, determining whether you should be referred for a parole release hearing.

At the annual review, Trantino’s progress, the impact of any change in placement, or his endeavors to show why his statements in counselling are not inconsistent with his acknowledgment of responsibility may be presented to the panel.

IX.

We are satisfied that the other arguments raised before us do not warrant discussion. R. 2:11—3(e)(1)(E).

X.

Trantino is serving a sentence of life imprisonment, and is doing so because the death penalty has been invalidated. He has no right to parole, Greenholtz v. Nebraska, supra; see also Connecticut Bd. of Pardons v. Dumschat, supra; Byrne, supra, 93 N.J. at 208, 460 A.2d 103, and Trantino can be compelled to serve his sentence for the rest of his life. The granting of parole is within the discretion of the Board, and we must give great deference to the expertise of the Board in its parole decisions and not upset them unless it clearly and convincingly appears that the Board has abused its discretion. State v. Lavelle, 54 N.J. 315, 255 A.2d 223 (1969); New Jersey State Parole Bd. v. Cestari, supra; O’Neal v. New Jersey State Parole Bd., supra, 149 N.J.Super. at 182, 373 A.2d 657. Given the record before us, we cannot conclude that the Board has acted arbitrarily in trying to fashion a parole plan.

The final administrative action of the Parole Board denying parole and establishing a ten year FET is affirmed. The matter is remanded to the DOC for further proceedings as provided herein. We do not retain jurisdiction.

1 We requested a copy of the judgments originally entered, in addition to those entered after Trantino's death penally was vacated. We did so to ascertain whether he was subject to one life sentence or two and, if the latter, whether they were concurrent or consecutive. The subject is relevant to the sentence before the Parole Board and the sentence which might be imposed for the same crimes under Title 2C. See Trantino Parole Application, supra.

2 It appears that the Court decided to treat Trantino the same as any convict sentenced to life imprisonment under Title 2A, even though the parole provisions relating to life sentences for murder under pre-Code law, pursuant to N.J.S.A. 30:4-123.11 (repealed), were premised upon the jury’s rejection of the death penalty and "recommend[ation of] life imprisonment.”

3 According to the transcript of the September 14, 1995 hearing, Trantino received "a one year hit, a one year hit, a ten year hit, a six year hit, a 36 month hit [and] another 36 month hit.” The denial of parole by a panel is appealable to the Board. N.J.S.A. 30:4-123.55(d), -123.58. If the panel votes to grant parole of someone convicted of murder, the full Board must approve the recommendation. N.J.S.A. 30:4-123.55(f). When a two-person panel believes a FET beyond the guidelines is required, a three-member panel must be convened. N.J.S.A. 30:4-123.56(a), (b); N.J.A.C. 10A:71-3.21(c), (d). These requirements explain why certain decisions were made by two member or three member panels, or the full Board.

4 Application of the Parole Act's procedural provisions and amendments thereto which may affect procedure pose no ex post facto issues. See California Dept. of Corrections v. Morales, 514 U.S.-, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Trantino Parole Application, supra; Royster v. Fauver, supra.

5 The briefs do not refer to N.J.S.A. 30:4-123.59(d) which authorizes parole to a residential facility funded in whole or part by the State. In the proceedings before us there is discussion of the Board's practice of paroling only after observation of an inmate's conduct and behavior while in halfway house placement, and its opposition to paroling prior to such review. See NJ.A.C. 10A:71-3.18(b) (effective February 21, 1995, regarding halfway house placement as a "pre-release condition"). In any event, we are cited to no regulation, and find none, which implements NJ.S.A. 30:4-123.59(d). To the contrary, the regulations empower the Commissioner of the DOC to "designate as a place of confinement any available, suitable and appropriate institution or facility whether owned by the State or otherwise,” N.J.A.C. 10A:20-4.2, and establish eligibility criteria and a review process for residential community release programs. N.J.A.C. 10A:20-4.1 et seq. The eligibility period is related to an established parole or parole eligibility date. N.J.A.C. 10A:20-4.7(a). Trantino has passed his statutory eligibility date. See also N.J.A.C. 10A:71-3.18(b) (requiring DOC approval of pre-release halfway house placement).

6 In 1995, however, the Department of Corrections adopted NJ.A.C. 10A:71-4.3, effective February 21, 1995, requiring administrative appeals from the adult panel to be made within 180 days of the decision.

7 N.J.A.C. 10A:20~4.12(c) requires the ICC “to reject an inmate’s application when placement in a Residential Community Release Agreement Program would pose a threat to the community or cause adverse community reaction." No attack is made on the regulation and we neither pass on it nor conclude it is unreasonable.

8 For example, at the September 14, 1995 hearing Trantino stated he had no conscious memory of shooting [Voto], that [s]ome things are black, some things I could remember.... Some things I have absolutely no memory of.... I say I have no conscious memory of it. I have said I have committed this murder. I am responsible for both murders, and it's hearsay— ... [b]ecause the prosecutor said I did it ... the police said I did it. It's very hard for me to accept it because it is such a painful thing. I don't remember it, but I did, and I'm responsible for both of the deaths...