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NOT FOR PUBLICATION WITHOUT THE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-1944-23
DAVID COLLINS,
Appellant,
v.
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
__________________________
Argued October 28, 2025 – Decided December 29, 2025
Before Judges Sumners and Augostini.
On appeal from the New Jersey State Parole Board.
Scott M. Welfel, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti,
Public Defender, attorney; Scott M. Welfel, of counsel
and on the briefs).
Leo R. Boerstoel, Deputy Attorney General, argued the
cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Donna Arons, Assistant Attorney
General, of counsel; Azeem M. Chaudry, Deputy
Attorney General, and Leo R. Boerstoel, on the briefs).
PER CURIAM
David Collins appeals the New Jersey State Parole Board's December 13,
2023 final agency decision denying him parole and imposing a sixty-month
Future Eligibility Term (FET). The Board found that, despite Collins' four
decades of incarceration––which included extensive disciplinary infractions––
he presented "minimal insight into [his] criminal thinking" that required
additional programming. The Board also found "that a preponderance of
evidence indicates that there is a substantial likelihood that [he] would commit
a crime if released on parole at this time."
We reverse and remand for the Board to reconsider its decision at a new
hearing within 90 days. The record demonstrates that the Board lacked a
sufficient basis to find that Collins posed a substantial likelihood of re-offense—
he has completed extensive rehabilitative programming while in prison, was
assessed as a "moderate" risk of re-offense, expressed remorse for the offense
throughout his parole hearing, and has not incurred any disciplinary infractions
since 2009.
A-1944-23
2
I.
On April 11, 1983, Collins beat A.B.,1 his former girlfriend D.B.'s mother
with a bat, stabbed her with a knife, sexually assaulted her, and submerged her
head in water. A.B. died from blunt trauma to the head. He then took $200
from her purse. Before the incident, Collins lived with A.B. and D.B., the
mother of his infant son, until he was told to leave after stealing A.B.'s car.
Collins stated he committed the crime after learning his girlfriend and her
mother were moving away.
A month later, Collins pled guilty to first-degree murder, first-degree
robbery, second-degree burglary, first-degree aggravated sexual assault,
possession of a weapon for an unlawful purpose, and hindering apprehension.
In accordance with his plea agreement, he was sentenced to an aggregate life
term with an additional twenty-year term and forty-year parole disqualifier.
During his incarceration, Collins incurred nineteen disciplinary charges
including four asterisk (serious) charges and fifteen non-asterisk charges. The
serious infractions included possession of prohibited substances in 1992, 19 84,
and 1998, attempting to commit or aiding another person to commit a prohibited
1
The Parole Board's decision refers to the victim and her daughter by their
initials. We do likewise.
A-1944-23
3
institutional infraction on July 8, 1992, and bribing an official or staff member
on October 27, 1989. His last disciplinary offense occurred in 2009.
Collins completed twenty-one programs in prison, including six for
therapy, two for substance abuse, and various vocational and religious classes,
and earned his GED. At the time of his parole proceedings, he was participating
in eleven programs, including vocational training and educational classes and
was earning credits for an associate's degree.
Prior to Collins' initial parole board hearing on January 25, 2023, 2 he was
evaluated twice by Nakia Perry-Goffney, Psy.D. After the first evaluation, Dr.
Perry-Goffney concluded the sixty-year-old Collins did not have severe
psychological problems, had a moderate risk for future violence, and that his
chances of successfully completing parole were "good" given his family support,
2
At the court's request, the parties submitted supplemental briefs addressing to
what extent Krug v. N.J. State Parole Board, 261 N.J. 477 (2025) affects this
appeal. Krug addressed whether retroactive application of the 1997 Parole Act
amendment's new information clause to an incarcerated person who committed
a crime prior to 1997 violated the ex post facto clause. 261 N.J. at 480. The
new information clause allowed parole boards to consider all information ,
including the facts of the offense and criminal history, at an incarcerated
person's second or subsequent parole hearing. Id. at 490. Because this appeal
concerns Collins' first appeal, Krug is inapplicable. See L. 1979, c. 441, §
(12)(c) ("An inmate shall be released on parole on the new parole eligibility date
unless new information filed" indicates that the incarcerated person is
substantially likely to commit a crime if released) (emphasis added).
A-1944-23
4
educational progress, and work experience while in prison. The doctor gave
Collins a score of "12" for his Level of Service Inventory-Revised (LSI-R),
which "indicates a low risk for recidivism with a 20% chance of re-arrest and a
13.3% chance of reconviction within two years of release." In terms of his
motivation for the offense, she observed that Collins thought he was "being
deprived of his relationship with [D.B.]" and saw A.B.'s mother "as challenging
his masculinity."
Regarding Collins' risk factors, Dr. Perry-Goffney noted that despite his
"antisocial traits" and lack of "a prosocial peer support network," his older age
is typically correlated with "decreased impulsivity, reactivity and likely lessened
criminality." Thus, she recommended that he be placed in a halfway house to
"demonstrate prosocial responsible behavior" before being released to the
community. If released on parole, she recommended that Collins abide by a
curfew, avoid "certain people and places as identified by the parole department,"
participate in mandatory drug testing, perform part-time educational or
vocational work, and receive supportive counseling services.
Dr. Perry-Goffney also conducted a Millon Clinical Multiaxial Inventory-
III, "a test that measures personality traits, reveal[s] prominent histrionic and
obsessive compulsive tendencies." In re J.P., 339 N.J. Super. 443, 450 (App.
A-1944-23
5
Div. 2001). She noted that Collins had a "marked distrust of others," was
"[willing] to be demeaned and placed in an inferior light," and displayed
"pessimistic" and "self-denigrating" ways of thinking.
At Collins' second evaluation, Dr. Perry-Goffney conducted the STATIC-
99R, "an actuarial test used to estimate the probability of sexually violent
recidivism in adult males previously convicted of sexually violent offenses." In
re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014). She scored him
"+2," predicting a "recidivism rate [of] 4.6% over 5 years, with a 95%
confidence interval between 4% and 5.2%," which is within the "[a]verage risk
category" for a sample population of sex offenders. Accordingly, she concluded
Collins did not meet the definition of a "sexually violent predator" and did not
require treatment before his release to the community.
Dr. Perry-Goffney also inquired about Collins' three disciplinary
infractions for indecent exposure while in prison. Collins described that he "was
not attempting to be an exhibitionist" and denied any "deviant sexual interests,
behaviors, or fantasies . . . [or] pedophilic or coercive sexual interests." Dr.
Perry-Goffney found his denial to be "genuine" and noted that he likely
exhibited "some level of carelessness, if not exhibitionist tendencies."
A-1944-23
6
The hearing officer considered Collins' disciplinary and program history
and Dr. Perry-Goffney's psychological evaluation. He also considered Collins'
statement that if he was released on parole he planned to work as a personal
trainer and live with his brother in Lindenwold. The hearing officer recognized
that Collins received a "favorable institutional adjustment at South Woods" and
"scored a low-risk assessment evaluation."
In assessing Collins' eligibility for parole release, the hearing officer
weighed mitigating and aggravating factors. As to mitigating factors, he noted
that Collins lacked a prior offense record, participated in behavioral and
institutional programs, the institutional programs reflected favorable
adjustment, he attempted to enroll and participate in programs but was not
admitted, and his risk assessment evaluation. As to aggravating factors, he cited
the facts and circumstances of Collins' offense, commission of multiple
offenses, and numerous and serious institutional infractions. The hearing officer
referred Collins for a Board panel hearing.
A two-member Board panel conducted Collins' parole hearing. Collins
explained his motivations in committing the crimes, his prison disciplinary
infractions, his family support if paroled, and reasons why he should be paroled.
He stated his crimes were committed due to a combination of factors: he was
A-1944-23
7
angry because A.B. used to "beat" D.B.; A.B. did not approve of his relationship
with D.B. because he had stolen A.B.'s car; he acted out of "foolishness" and
"irresponsibleness"; "[he] was trying to be somebody [he] wasn't . . . [and was]
trying to take control of the situation"; and he feared losing his son because D.B.
and A.B. were moving away.
Specific to the sexual assault, Collins explained, "[his] young immature
mind . . . [and] the way [A.B.] used to present herself around the house"
informed his mindset at the time and noted that "[he] acted out . . . [and] didn't
have any control over [himself]." He also noted "[A.B.] had a nice figure, so I
guess I was attracted to her and that's why I did what I did." Finally, when asked
to identify the victims of his crimes, he only stated A.B., but then apologized,
stating: "[D.B.] is a victim. The family members are a victim. Everybody is a
victim." Regarding his family support, Collins remarked that he and his forty-
year-old son, a pastor, have been in contact since 2015.
Collins stated he is a changed person now, reflecting:
I am appalled at the person that I used to be, that I even
could be that person to do something like that. So like
I said, all I can do right now is try to help as many
people as I can. I know it only starts with one, but if I
can just tell my story and change one person’s life then
that’s what I'm gonna do.
A-1944-23
8
In terms of his disciplinary infractions, Collins denied the substance of
the indecent exposure offenses, stating that he "didn't expose [himself] to
anyone." Finally, when asked why he should be paroled, Collins, among other
things, said: "I deserved everything that I got . . . [e]verything that happened to
me all this time, I mean there is nothing that I can do to undo what I did."
The panel denied parole, reiterating the mitigating and aggravating factors
listed in Collins' case assessment. The panel reasoned:
Mr. Collins committed a heinous crime and was upfront
about what he did during the hearing. He did not
articulate an understanding of why he did what he did,
only saying that's not him anymore. He had 3 charges
for indecent exposure which he minimized saying the
charge was a misconception by the officer.
The panel "determined a substantial likelihood exists that [Collins] would
commit a new crime if released on parole."
Four months later, the panel issued an amended decision to "clarify the
factors that were in the record at the time [Collins'] case was assessed and that
were relied upon by the Board Members in rendering the decision to deny [his]
parole."3
3
The two-member panel's amended decision was in response to the Division of
Release amending Collins' case assessment after Collins' initial hearing on
January 25, 2023. The changes involved removing fifteen years from the total
A-1944-23
9
The three-member Board panel convened and established a sixty-month
FET for Collins. In its reasoning for applying a FET outside of the
administrative guidelines, the panel relied on the facts and circumstances of
Collins' offense, Collins' institutional infractions (emphasizing the four serious
infractions), and his insufficient problem resolution. The panel also noted that
it considered Collins' mitigation letter in establishing the FET.
In terms of problem resolution, the panel noted that Collins "possessed
only marginal insight into the criminal thinking related to the murder" and that
his actions were indicative of "an individual with no conscience." The panel
found that Collins' reasons for the offense—that he killed A.B. to remain with
D.B. and his child—did not make sense since "[b]y killing [A.B.], [he] would
more than likely be arrested and go to prison." Additionally, it noted that Collins
characterized the murder as "retribution" for witnessing the mother physically
assault D.B., but that this explanation did not capture "the full scope of [his]
negative attitude and emotions towards the victim." Notably, the panel
sentence term, reinstating all of Collins' offenses (except for murder) as active,
changing Collins' non-asterisk charges from twelve to fifteen, and adding three
disciplinary infractions (being in an unauthorized area, confiscated material, and
engaging in sexual acts with others). The two-member panel noted that the
amended case assessment would be provided to the three-member panel in
determining the FET.
A-1944-23
10
expressed concerns about the sexual assault component of the crime, noting that
Collins initially failed to provide a reason for his actions but then later stated
that the victim had a "nice figure." These statements, when coupled with Collins
minimizing his indecent exposure infractions, informed the panel's concerns
about Collins' lack of insight into his actions.
The panel also relied on Collins' disciplinary infractions in establishing a
sixty-month FET. It noted that Collins had incurred nineteen infractions that
included four "serious" offenses and numerous indecent exposure incidents that
Collins denied. Thus, the panel concluded that Collins' disciplinary record
demonstrated his "propensity to commit indecent exposure infractions . . . [and]
that [he] knowingly . . . violated the rules and . . . acted out for self-serving
reasons."
Finally, the panel acknowledged Collins' progress in programming but
reasoned that he "must immerse [himself] in further programming" to address
his lack of insight into the crime he committed. Specifically, the panel reasoned
that "multiple issues" existed between Collins and A.B. beyond just witnessing
her physically assault D.B., and that he "must do a self-analysis [of] how all of
A-1944-23
11
those issues in total impelled [him] to commit the murder." Accordingly, the
panel established a sixty-month FET.4
Collins appealed to the full Board, stating the panel "failed to consider
material facts"; "failed to document that a preponderance of the evidence
indicates a substantial likelihood that [he] will commit a crime if released on
parole"; and its "decision is contrary to written [Board] policy or procedure."
The Board rejected Collins' contentions, affirming the panel's denial of parole
and establishment of a sixty-month FET.
The Board found that the panel's determination—a preponderance of the
evidence indicates a substantial likelihood that Collins would re-offend—was
supported by his "minimal insight into [his] criminal thinking" that required
additional programming and his extensive disciplinary infractions. The Board
found that Collins' claim, that he took full responsibility for the crime and that
the panel failed to specify which programming he should complete to be viable
for parole, only indicated an "initial effort at rehabilitation." The Board
acknowledged that parole is "presumptive," but that Collins' completion of his
4
The panel issued an amended decision which merely reflected the
commencement of the FET date and that credits will reduce his prison time.
A-1944-23
12
minimum sentence and "statutory standards" did not make him "suitable for
parole release." Accordingly, the Board denied Collins' parole.
II.
"[Our] scope of our review is narrow." Berta v. N.J. State Parole Bd., 473
N.J. Super. 284, 302 (App. Div. 2022). We will disturb an agency's decision
only if we determine that the decision is "arbitrary,
capricious or unreasonable" or is unsupported "by
substantial credible evidence in the record as a whole."
In determining whether an agency action is arbitrary,
capricious, or unreasonable, we examine: (1) whether
the agency's action violates express or implied
legislative policies, that is, did the agency follow the
law; (2) whether the record contains substantial
evidence to support the findings on which the agency
based its action; and (3) whether in applying the
legislative policies to the facts, the agency clearly erred
in reaching a conclusion that could not reasonably have
been made on a showing of the relevant factors.
[Ibid. (citations omitted) (first quoting Henry v.
Rahway State Prison, 81 N.J. 571, 579-80 (1980); and
then quoting In re Carter, 191 N.J. 474, 482 (2007)).]
We are also "deferential to an agency's expertise." Ibid. Parole
determinations, in particular, "are entitled to deferential review by our courts,"
and "[a] mere difference of opinion is not a basis for a court to overturn a parole
decision." Acoli v. N.J. State Parole Bd., 250 N.J. 431, 454 (2022).
Nevertheless, "when a parole decision is so far wide of the mark or so manifestly
A-1944-23
13
mistaken under the governing statutory standard, intervention is required in the
interests of justice." Id. at 455.
"[T]he Parole Board is 'the administrative agency charged with the
responsibility of deciding whether an inmate satisfies the criteria for parole
release under the Parole Act of 1979 [Act].'" Berta, 473 N.J. Super. at 302-03
(quoting In re Hawley, 98 N.J. 108, 112 (1984)). Although the Act was revised
in 1997, Collins' parole is governed by the 1979 version of the Act that was in
effect when he committed the crime in 1983. See N.J.S.A. 30:4-123.53 (1979).
That version provides that the inmate "shall be released on parole at th e 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 time." Id. at 304 (alterations in original) (quoting
Acoli, 250 N.J. at 455); see also N.J.S.A. 30:4-123.53 (1979). 5
The Court defined "substantial likelihood":
Assessing the risk that a parole-eligible candidate will
reoffend requires a finding that is more than a mere
probability and considerably less than a certainty. To
5
Today, the Board "may deny parole if it is shown by a preponderance of the
evidence that an 'inmate has failed to cooperate in his or her own rehabilitation
or that there is a reasonable expectation that the inmate will violate conditions
of parole imposed pursuant to [N.J.S.A. 30:4-123.59].'" Acoli, 250 N.J. at 455
n.12 (alteration in original) (quoting N.J.S.A. 30:4-123.53).
A-1944-23
14
be sure, the mere 'potential' that an inmate if released
may reoffend is not sufficient. Only when the risk of
reoffending rises to 'a substantial likelihood' may a
parole-eligible inmate be denied parole.
[Acoli, 250 N.J. at 456 (quoting N.J. State Parole Bd.
v. Cestari, 224 N.J. Super. 534, 550 (App. Div. 1988)).]
In making the parole release decision, N.J.A.C. 10A:71-3.11 requires the
Board to assess twenty-four factors 6 "based on the aggregate of all pertinent
6
N.J.A.C. 10A:71-3.11(b) factors are:
1. Commission of an offense while incarcerated.
2. Commission of serious disciplinary infractions.
3. Nature and pattern of previous convictions.
4. Adjustment to previous probation, parole and
incarceration.
5. Facts and circumstances of the offense.
6. Aggravating and mitigating factors surrounding the
offense.
7. Pattern of less serious disciplinary infractions.
8. Participation in institutional programs which could
have led to the improvement of problems diagnosed at
admission or during incarceration. This includes, but is
not limited to, participation in substance abuse
programs, academic or vocational education programs,
work assignments that provide on-the-job training and
individual or group counseling.
9. Statements by institutional staff, with supporting
documentation, that the inmate is likely to commit a
crime if released; that the inmate has failed to cooperate
in his or her own rehabilitation; or that there is a
reasonable expectation that the inmate will violate
conditions of parole.
A-1944-23
15
10. Documented pattern or relationships with
institutional staff or inmates.
11. Documented changes in attitude toward self or
others.
12. Documentation reflecting personal goals, personal
strengths or motivation for law-abiding behavior.
13. Mental and emotional health.
14. Parole plans and the investigation thereof.
15. Status of family or marital relationships at the time
of eligibility.
16. Availability of community resources or support
services for inmates who have a demonstrated need for
same.
17. Statements by the inmate reflecting on the
likelihood that he or she will commit another crime; the
failure to cooperate in his or her own rehabilitation; or
the reasonable expectation that he or she will violate
conditions of parole.
18. History of employment, education and military
service.
19. Family and marital history.
20. Statement by the court reflecting the reasons for the
sentence imposed.
21. Statements or evidence presented by the appropriate
prosecutor's office, the Office of the Attorney General,
or any other criminal justice agency.
22. Statement or testimony of any victim or the nearest
relative(s) of a murder/manslaughter victim.
23. The results of the objective risk assessment
instrument.
24. Subsequent growth and increased maturity of the
inmate during incarceration.
A-1944-23
16
factors." "The weight to be assigned to any one factor will depend on the unique
history, background, and characteristics of the individual and the institutional
record developed during years of incarceration." Acoli, 250 N.J. at 457.
Most importantly, "[u]nder the governing statutory and regulatory
framework, once a defendant becomes eligible for parole, he or she is entitled
to 'a presumption in favor of parole.'" Berta, 473 N.J. Super. at 304 (quoting In
re Trantino (Trantino II), 89 N.J. 347, 356 (1982)). Thus, "the burden is on 'the
State to prove that the prisoner is a recidivist and should not be released.'" Id.
at 304-05 (quoting Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113,
197 (2001)). "Overcoming the presumption of parole is a 'highly predictive'
determination which must take into account 'the aggregate of all of the factors
which may have any pertinence.'" Id. at 305-06 (citation omitted) (first quoting
Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 115 (App. Div. 1986);
and then quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 360 (1973)).
In Berta, we emphasized that "the parole release decision is fundamentally
different from the decision made by a trial court when imposing the initial
sentence." Id. at 305. Although the Board may consider the "'[f]acts and
circumstances of the offense' as a relevant factor" under N.J.A.C. 10A:71 -
3.11(b)(5), "'the gravity of the crime' cannot serve as 'an independent reason
A-1944-23
17
for continuing punishment and denying parole' under the 1979 Act." Ibid.
(alteration in original) (quoting Trantino II, 89 N.J. at 373-74). "That is because
the punitive aspects of the sentence have been satisfied by the time an inmate
is eligible for parole." Acoli, 250 N.J. at 457.
III.
Collins argues the Board erroneously applied the 1948 Parole Act legal
standard, instead of the 1979 Parole Act standard, by focusing on whether he
was "suitable for parole" and finding that he only made an "initial effort at
rehabilitation." The 1948 Act required the Board to focus on whether the
incarcerated person "had served enough time in prison and been sufficiently
punished in terms of both society's need for adequate punishment and the
inmate's individual progress toward rehabilitation." N.J. Parole Bd. v. Byrne,
93 N.J. 192, 204 (1983). Whereas the 1979 Parole Act limited the Board's focus
on punishment "to the rehabilitative prospects of the inmate and his likelihood
of recidivism if released." Trantino v. N.J. State Parole Bd. (Trantino IV), 154
N.J. 19, 26 (1998). Collins asks this court to reverse the Board's decision
because it denied him parole on the basis that he had not demonstrated
"sufficient rehabilitation," the 1948 standard, thereby erroneously shifting the
burden of proof to him. We disagree.
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18
Even though the Board's language—such as "initial efforts at
rehabilitation" and Collins' "suit[ability] for parole"—is like language from the
1948 Act, the 1979 Parole Act allows parole boards to consider rehabilitation
insofar as it addresses the risk of recidivism. Berta, 473 N.J. Super. at 323. We
favor the Board's reply that its findings regarding rehabilitation addressed
relevant factors such as Collins' attitudes towards himself and others, his mental
health, personal goals and growth, his family support, and parole plans, all of
which are relevant to a likelihood of recidivism. N.J.A.C. 10A:71-3.11(b)(11)
to (13), (15). The Board's focus on Collins' rehabilitation was thus relevant to
determining his risk of recidivism, the appropriate standard under the 1979
Parole Act.
We, however, agree with Collins that the Board's decision lacked
substantial evidence in the record to deny him parole. The record does not
support the Board's agreement with the panel's decision that he possessed
"minimal insight into [his] criminal thinking"; had insufficient problem
resolution necessitating further programming; his nineteen disciplinary
infractions demonstrated "a propensity to commit indecent exposure
infractions," and the facts of his crime made it substantially likely that he would
commit a crime upon his release.
A-1944-23
19
The Board correctly notes the hideousness of Collins' crimes. Yet, the
weight of the record indicates he has expressed consistent remorse and
responsibility for his actions. During the two-member panel hearing, Collins
explained that "[he] was trying to be somebody [he] wasn't . . . [and was] trying
to take control of the situation," because D.B. and A.B. were moving away, he
believed that he would lose his son, and he was intoxicated at the time of the
offense. Dr. Perry-Goffney noted Collins thought he was "being deprived of his
relationship with [D.B.]" and saw A.B. "as challenging his masculinity."
Further, throughout the hearing, he accepted full responsibility for his actions,
admitting he "deserved everything that [he] got," explaining he prayed for A.B.'s
family's understanding that he has changed, and expressed a desire to "help those
. . . to not make the same bad choices as [he] did back then."
Regarding Collins' insufficient problem resolution, the Board overlooked
evidence in the record showing his genuine efforts at rehabilitation; and failed
to explain how his "initial effort[s] at rehabilitation" made him likely to
recidivate, the primary focus of the 1979 Parole Act standard. See McGowan,
347 N.J. Super. at 565 ("[T]he Board [must] focus its attention squarely on the
likelihood of recidivism."). The record demonstrates Collins' significant
progress in rehabilitation during his almost forty years of incarceration . He
A-1944-23
20
completed six therapeutic, two substance abuse and various religious and
vocational programs; earned his GED; tutored fellow inmates; and is earning his
associate's degree.
As to Collins' potential for recidivism, Dr. Perry-Goffney's testing
revealed "a low risk for recidivism with a 20% chance of re-arrest and a 13.3%
chance of reconviction within two years of release," and a moderate risk for
future violence. Dr. Perry-Goffney opined that Collins' likelihood of completing
parole was "good" given his educational progress, work experience, and family
support. The doctor recognized there were potential concerns, like Collins'
"marked distrust of others," "propensity to enter into abusive relationships and
troublesome situations," and the possibility he "may stir up fractious encounters
. . . [that] preclude a socially rewarding and consistent lifestyle ." However, she
still maintained he did not pose a substantial risk of re-offense upon release.
The Board's failure to consider or reasonably refute this persuasive evidence in
the record belies its decision denying parole.
The Board's reasoning about Collins' disciplinary history and his
recidivism disregards relevant evidence in the record. He has been discipline-
free since 2009, some fourteen years as of the panel hearing. Moreover, despite
his indecent exposure offenses, his risk assessment evaluation statement that he
A-1944-23
21
"was not attempting to be an exhibitionist" conforms with Dr. Perry-Goffney's
opinion that his tendencies were due more to "carelessness, if not due to
exhibitionist tendencies." Notably, Collins' risk assessment score for a sexual
offense was a +2, which amounts to a 4.6% recidivism rate over the next five
years. Thus, contrary to the Board's determination, his remote disciplinary
infractions and his risk assessment report do not establish that he is substantially
likely to re-offend if released.
We are constrained to conclude the Board's decision denying Collins'
parole was arbitrary and capricious given that the record is replete with
examples of his remorse, insight, and responsibility for his actions, and most
significantly, the low chance of his likelihood to reoffend. As such, we remand
to the Board to conduct a new hearing to adequately explain all relevant factors
in determining whether the preponderance of the evidence establishes a
substantial likelihood that Collins will reoffend. We do not retain jurisdiction
because we anticipate that the Board will "act in good faith in fulfilling its
responsibilities on remand" and will grant Collins parole if the evidence shows
there is a substantial likelihood that he will not reoffend. Berta, 473 N.J. Super.
at 321.
A-1944-23
22
IV.
Finally, we address Collins' contention that the Board improperly imposed
a sixty-month FET by failing to overcome the twenty-seven-month FET
presumption. He argues the Board's reasons for imposing the sixty-month FET
were conclusory, relying on the same factors it denied parole which we
determined in Berta was inappropriate. We agree.
Under N.J.A.C. 10A:71-3.21(a)(1), an incarcerated person serving a
minimum term in excess of fourteen years is ordinarily assigned a twenty-seven-
month FET after a denial of parole. However, N.J.A.C. 10:71-3.21(d) allows a
three-member panel to establish a FET outside of the administrative guidelines
if the presumptive twenty-seven-month FET is "clearly inappropriate due to the
inmate's lack of satisfactory progress in reducing the likelihood of future
criminal behavior." Yet, this standard is a "high threshold to vault" and a
"twenty-seven-month FET [for people with murder convictions] . . . is not to be
dispensed with for light or transient reasons." Berta, 473 N.J. Super. at 322-23.
"[A]n extended FET must be based on substantial credible evidence in the record
that objectively demonstrates that its duration directly relates to the amount of
time necessary to address the reasons identified for denying parole." Id. at 328-
29 (Geiger, J.A.D., concurring).
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The Board, through its affirmation of the three-member panel's
recommendation, relied on the same reasons—the facts of Collins' offense, his
institutional infractions (emphasizing the four serious infractions), and
insufficient problem resolution—in denying parole. However, it failed to justify
why a twenty-seven-month FET would be inappropriate given Collins' extensive
rehabilitation and low risk scores. As such, the Board failed to meet the standard
to establish a sixty-month FET. If on remand, the Board denies Collins parole,
it must reconsider the FET.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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