The opinion
NOT FOR PUBLICATION WITHOUT THE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-2036-23
JUAN ROSADO,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
Submitted March 19, 2025 – Decided June 19, 2025
Before Judges Currier and Paganelli.
On appeal from the New Jersey State Parole Board.
Juan Rosado, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Eric Intriago, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Juan Rosado appeals from a January 31, 2024 final decision of
the New Jersey State Parole Board (Board), denying parole and establishing a
twenty-four-month future eligibility term (FET). We affirm.
In 1989, appellant was convicted by a jury of murder and sentenced to a
term of life imprisonment with a parole ineligibility period of thirty years.
While in prison, appellant committed eighteen disciplinary infractions, six of
which were asterisk infractions.1 Appellant's most recent infraction occurred in
2016.
In 2023, appellant became eligible for parole for the third time. On
August 25, 2023, the Board panel denied parole and established a twenty-four-
month FET. The Board panel used the "prior to 8/19/1997" standard and
determined "a substantial likelihood exist[ed] that [appellant] would commit a
new crime if released on parole at [that] time."
The Board panel found the following mitigating factors applied:
"Infraction free since last panel"; "[p]articipation in program(s) specific to
behavior"; "[p]articipation in institutional program(s)"; "[i]nstitutional reports
reflect favorable institutional adjustment"; and "letter of support in file." For
1
Asterisk infractions are considered major violations and may be subject to
serious sanctions.
A-2036-23
2
reasons for denial, the panel found: "[f]acts and circumstances of offense(s).
Specifically: murder"; "[p]rior offense record is extensive"; "[o]ffense record
is repetitive"; "[p]rior offense record noted;" "[n]ature of criminal record
increasingly more serious"; "[c]ommitted to incarceration for multiple
offenses"; "[c]urrent opportunity(ies) on community supervision (on probation
. . .) terminated/revoked for the commission of new offense(s)"; "[c]ommitted
new offense(s) on community supervision (probation . . . ) but status not
formally terminated/revoked"; "[p]rior opportunity(ies) on community
supervision (probation . . . ) has (have) failed to deter criminal behavior";
"[p]rior incarceration(s) did not deter criminal behavior"; and "[i]nstitutional
infraction(s): numerous/persistent/serious in nature; loss of commutation time;
confinement in detention and/or Administrative Segregation; consistent with
offense record. Last infraction: 7/21/16 (204)—use of narc[otics] . . . ";
"substance abuse problem has not been sufficiently addressed;" and "[r]isk
assessment evaluation. LSIR23."
The Board panel also concluded that appellant had insufficient problem
resolution, stating specifically, he was "still in the process of dealing with his
criminal thinking and behavior" and he still had "not taken the steps necessary
A-2036-23
3
in order to change his way of thinking nor has he completed certain
programming that would assist him since his last full board hearing."
Appellant appealed the Board panel's decision to the full Board,
submitting a supplemental administrative letter and subsequently an amended
appeal. On January 31, 2024, the Board issued a final agency decision affirming
the denial of parole and imposition of a twenty-four-month FET. In its lengthy
decision, the Board rejected appellant's arguments and concurred with "the
determination of the Board panel that a preponderance of the evidence indicates
that there is a substantial likelihood that [appellant] would commit a crime if
released on parole at this time."
On appeal, appellant contends the Board failed to consider "the age-crime
curve" and his current age. Appellant further asserts the usage of the pre-August
19, 1997 amendment standard is unconstitutional.
Our standard of review of administrative decisions by the Board is limited
and "grounded in strong public policy concerns and practical realities." Trantino
v. N.J. State Parole Bd. (Trantino II), 166 N.J. 113, 200 (2001). "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 (1979)). "To a greater
A-2036-23
4
degree than is the case with other administrative agencies, the Parole Board's
decision-making function involves individualized discretionary appraisals."
Ibid.
Consequently, this court "may overturn the Parole Board's decisions only
if they are arbitrary and capricious." Ibid. With respect to the Board's factual
findings, we do not disturb them if they "could reasonably have been reached on
sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino
v. N.J. State Parole Bd. (Trantino I), 154 N.J. 19, 24 (1998)).
We begin with appellant's argument that the Board failed to consider his
current age in determining the likelihood of recidivism. We are unpersuaded.
The Board addressed the contention squarely in its decision, stating:
[Appellant] assert[s] that the Board panel failed to
consider the probability that [appellant] will commit
another crime if released is exceedingly small.
Specifically, [appellant] claim[s] that research shows
that "[o]lder offenders [are] substantially less likely
than younger offenders to recidivate following release;"
that the Board panel totally disregarded, not
[appellant's] advanced age as in Berta,[2] but [his]
participation in several programs geared toward [his]
behavior and bad decision making; and that the Board
panel must "stop ignoring the current case[]law and the
court mandate that advanced age, programming, or any
one (1) factor will depend on the unique history,
background and characteristics of the individual and the
2
Berta v. N.J. State Parole Bd., 473 N.J. Super. 284, 322 (App. Div. 2022).
A-2036-23
5
institutional record developed during years of
incarceration" that are "highly relevant factors in
mitigation" that the Board must consider. The Board
panel has the obligation to determine if there is a
substantial likelihood that [appellant] would commit a
crime if released on parole at this time. [Appellant's]
age is a matter of record, was noted on the Case
Assessment at the time of [his] Initial Hearing, and was
considered by the Board panel. However, an offender's
age is not dispositive of whether the offender is suitable
for parole[—]release. Regarding [appellant's] claim
that the Board panel totally disregarded, not [his]
advanced age as in Berta, but [his] participation in
several programs geared toward [his] behavior and bad
decision making, the Board finds that [appellant's] pre-
parole report and rehabilitative efforts are a matter of
record. [Appellant's] program participation was noted
on the Case Assessment at the time of [his] Initial
Hearing[] and was considered by the Board panel.
Upon review of the electronic recording of the Board
panel hearing, the Board finds that the Board panel and
[appellant] discussed [his] program participation and
[his] lack of programming to address [his] addiction use
and cognitive behavior. The Board panel inquired
about the 12-STEP program and noted that [appellant
was] unable to recite any of the 12-STEPS from the
program, to which [appellant] responded, "I had a drug
addiction, but I don't take any drugs anymore." The
Board finds that the Board panel followed up by
inquiring about [appellant's] 2008 Anger Management
program, and [appellant] responded, "I learned how to
control my temper, I had a bad anger problem."
Further, the Board panel acknowledged [his] program
participation, while also noting that [appellant] really
[has] not engaged in nor completed much programming
since [his] last Board panel hearing. In addition, the
Board finds that the Board panel specifically noted as
mitigating factors on its Notice of Decision: infraction
A-2036-23
6
free since last panel; participation in programs specific
to behavior; participation in institutional programs;
institutional reports reflect favorable institutional
adjustment; and letter of support on file. As a result,
the Board finds that the Board panel did not solely base
its decision to deny parole on the negative aspects in
the record, rather, the Board finds that the Board panel
based its decision on the entire record governed by the
factors set forth in the statutory requirements and
N.J.A.C. 10A:71-3.11.
In Acoli v. New Jersey State Parole Board, 250 N.J. 431, 470 (2022), the
Court found that "[n]othing in the Parole Board's decision suggests that the
Board considered in any meaningful way the studies on the age-crime curve in
denying parole to [the appellant]." The Court found the Parole Board's decision
was not supported by substantial evidence in the record that the appellant would
commit a crime and ordered the appellant to be released "in accordance with his
parole plan." Id. at 470-71.
As a result, in Berta, this court instructed "the Board to account
specifically for [the appellant's] age, along with all relevant mitigating
circumstances, in determining whether—and, if need be, explaining why—the
preponderance of the evidence establishes a substantial likelihood that he will
re-offend." 473 N.J. Super. at 322.
Here, as stated in its decision, the Board did take appellant's age into
account. He is currently fifty-six years old, significantly younger than the
A-2036-23
7
appellants in Acoli and Berta, who were eighty-five and seventy-one years old
at the time of their respective parole hearings.
Appellant also asserts the Board applied the incorrect standard in
determining his parole eligibility. We disagree.
The Board stated:
[Appellant] also contend[s] that the Board panel failed
to document that a preponderance of the evidence
indicates a substantial likelihood that [appellant] will
commit a crime if released on parole. Specifically,
[appellant] claim[s] that the Board panel's decision to
deny parole was arbitrary, capricious or unreasonable,
or unsupported by substantial evidence in the record as
a whole, as it was not supported by new evidence
presented at the hearing, but rather old evidence that
was, and has been, utilized repeatedly by the Board
panel in the past to deny parole. With regard to
[appellant's] contention that the Board panel's decision
was "arbitrary and capricious," the courts have defined
an arbitrary and capricious action as one that is willful
and unreasoning, without consideration and in
disregard of circumstances. The Board finds that
[appellant's] appeal contains no evidence to support this
claim and none exists in the record. Furthermore,
pursuant to N.J.S.A. 30:4-123.56(c), amendments to the
Parole Act of 1979 . . . consideration of the entire record
at each instance of parole consideration [is required].
The Parole Board may consider all information and is
not limited to considering only new information.
Moreover, the Board finds that the Board panel's
decision to deny parole was based upon sufficient
credible evidence in the record and that the Board panel
fully documented its reasons for parole denial. The
Board panel further noted in its Notice of Decision that
A-2036-23
8
[appellant had] insufficient problem resolution,
specifically, that [he had] not sufficiently addressed
[his] substance abuse problem. The Board panel also
noted [his] program participation as a mitigating factor.
Pursuant to N.J.A.C. 10A:71-3.11, the Board panel is
required to consider and base its decision on the
aggregate of factors, including [appellant's] adjustment
on community supervision, as well as [appellant's] past
and present offenses. The Board panel has the authority
to determine [appellant's] suitability for parole and the
standard for assessing [his] case is whether a substantial
likelihood exists that [appellant] would commit a new
crime if released on parole at this time. The Board finds
that the Board panel sufficiently documented the
reasons for denial of parole, pursuant to N.J.A.C.
10A:71-3.18(f), and considered and based its decision
on the aggregate of all factors pursuant to N.J.A.C.
10A:71-3.11. Therefore, the Board finds [appellant's]
contention to be without merit.
An inmate's "parole is governed by the version of the Parole Act of 1979
. . . in effect when [their] crime was committed." Berta, 473 N.J. Super. at 304.
Appellant's crime was committed in 1988. Therefore,
[t]he statutory text that applies in this case provides
. . . that [the inmate] "shall be released on parole at the
time of parole eligibility, unless [it is shown] by a
preponderance of the evidence that there is a substantial
likelihood that the inmate will commit a crime . . . if
released on parole at such a time."
[Ibid. (third alteration and second omission in original)
(quoting Acoli, 205 N.J. at 455).]
The Board used the proper standard in denying appellant parole.
A-2036-23
9
The Board's findings are neither arbitrary nor unreasonable, but rather are
supported by credible evidence. The Board has authority to make the assessment
as to the expectation that an inmate will commit a crime if released on parole.
The Board's decision to deny parole and set a twenty-four-month FET is
supported by sufficient credible evidence in the record and consistent with the
applicable law.
To the extent we have not addressed all of appellant's contentions, we find
they lack sufficient merit to warrant discussion in a written decision. R. 2:11-
3(e)(2).
Affirmed.
A-2036-23
10