THOMAS MUSTO VS. NJ STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD)

NOT FOR PUBLICATION WITHOUT THE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-5537-16T4

THOMAS MUSTO,

Appellant,

v.

NEW JERSEY STATE
PAROLE BOARD,

Respondent.
_____________________________

Submitted November 27, 2018 – Decided April 1, 2019

Before Judges Rothstadt and Gilson.

On appeal from the New Jersey State Parole Board.

Thomas Musto, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Erica R. Heyer, Deputy
Attorney General, on the brief).

PER CURIAM
 Appellant Thomas Musto is a seventy-four year old New Jersey inmate,

currently incarcerated in another state under the Interstate Corrections

Compact.1 He is serving a term of life imprisonment for a 1984 murder and the

possession of a weapon without a permit for which he was sentenced in 1986.

His sentence was subject to a thirty-year period of parole ineligibility.

As his first parole eligibility date approached, a two-member panel (Board

Panel) of respondent New Jersey State Parole Board (Board) denied his

application for parole and referred his matter to a three-member panel that

imposed a 120-month future eligibility term (FET), which the Board reviewed

and adopted. He now appeals from the Board's May 31, 2017 final agency

decision denying him parole and imposing the 120-month FET. We affirm.

In 1984, appellant became a suspect in a police investigation into the death

of a shooting victim whose body had been discovered behind a supermarket.

According to police, appellant identified another individual as the perpetrator,

but further investigation led police to conclude that the individual was no t the

1
"The . . . compact, . . . as codified in this state, empowers New Jersey to enter
into contracts with other states 'for the confinement of inmates on behalf of a
sending state in institutions situated within receiving states.' . . . The purpose of
the ICC is to provide more extensive options for the treatment and rehabilitation
of various offenders than may be available within each individual state." Van
Winkle v. N.J. Dep't of Corr., 370 N.J. Super. 40, 45 (App. Div. 2004) (citations
omitted).
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shooter and to the discovery of the murder weapon in appellant's possession.

Appellant was subsequently arrested and charged in an indictment with murder

and possession of a weapon without a permit. After a twenty-one day trial, a

jury convicted appellant of both offenses. After his conviction, appellant still

maintained the other individual shot the victim. On November 7, 1986, the trial

court imposed its sentence.

At the time of his arrest, appellant had one prior conviction for a 1982

invasion of privacy for which he was sentenced to a suspended sentence and

probation. After his conviction for murder, and prior to being considered for

parole by the Board Panel, appellant had committed five disciplinary infractions

while incarcerated, including attempted escape and misuse of authorized

medications, both "asterisk offenses," which under State regulations are

"considered the most serious and result in the most severe sanctions." N.J.A.C.

10A:4-4.1. His last infraction occurred in 2000.

As appellant's initial parole eligibility date of August 20, 2016, became

imminent, his application for parole was first heard by a hearing officer on May

3, 2016. After considering the matter, the hearing officer referred appellant's

case to the Board Panel.

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 The Board Panel denied parole on June 9, 2016, and referred the

establishment of an FET to a three-member panel. According to the Board

Panel, its decision was based upon, among other factors, the seriousness of

appellant's criminal offense; his prior record, which had become more serious

over time; his institutional offenses; his earlier failure to successfully complete

probation he received after committing his prior offense; and his "insufficient

problem resolution" characteristics that included "a lack of insight into [his]

criminal behavior." Notably, the Board Panel found that appellant told a "very

different [version of his offense] than the official version [stating that] it was an

accidental shooting," which led the Board Panel to conclude that appellant

"needs to address his criminal thinking and be more forthcoming about his

crime."

In reaching its decision, the Board Panel considered various mitigating

factors that weighed in favor of parole. They included reports of appellant's

successful engagement and participation in institutional programs, his minimal

number of infractions over the years, and a favorable risk assessment report, as

well as appellant's being placed on "minimum custody status."

After the Board Panel's decision and its referral, the three-member panel

then established a 120-month FET, which was outside the administrative

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guidelines. The three-member panel issued a written explanation for its

decision, which involved consideration of the same factors as the Board Panel,

including mitigating factors. The three-member panel elaborated on the Board

Panel's concern about appellant not coming to terms with his criminal behavior.

It stated that because appellant described his victim's killing as an accident, the

Board Panel could not enter into a "dialogue" with appellant about "what [his]

mind[]set was at the time of [the] Murder offense, what [he] ha[s] come to

understand about [him]self as to why [he] chose to take [the] victim's life in such

an extreme manner and how it can be determined that such behavior . . . would

not occur again if [he] were released at this time."

Appellant appealed both panels' decisions to the full Board. On May 31,

2017, the Board affirmed the denial of parole and the imposition of a 120-month

FET. The Board explained its ruling in a written decision in which it relied upon

the same factors considered by its panels, including the mitigating factors. In

its decision, the Board noted that in accordance with the ICC, it considered an

April 27, 2016 risk assessment and "[a] complete report on [appellant's] social,

physical, and mental condition and reports of [his] institutional housing, work,

education and program participation" that was provided by the "Department of

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Corrections" of the state where he is incarcerated. Appellant now appeals from

the Board's final agency decision.

In his appeal to us, appellant contends:

POINT ONE

BOARD PANEL FINDING THAT APPELLANT
POSSESSES A SUBSTANTIAL LIKELIHOOD TO
COMMIT ANOTHER CRIME IF RELEASED UPON
PAROLE IS NOT SUPPORTED BY SUBSTANTIAL
CREDIBLE EVIDENCE.
(Raised Below)

POINT TWO

BOARD PANEL DECISION TO DENY PAROLE IS
NOT BASED UPON PAROLE STATUTES AND
ADMINISTRATIVE REGULATIONS WHICH
INFRINGED UPON APPELLANTS
CONSTITUTIONAL RIGHTS UNDER THE DUE
PROCESS CLAUSE OF THE U.S. CONSTITUTION
AMENDMENT FOURTEEN.
(Raised Below: Parole Act of 1979, U.S. CONST. 14th
Amend.)

POINT THREE

THE NEW JERSEY STATE PAROLE BOARD
ACTED ARBITRARILY AND CAPRICIOUSLY
WHEN IT IMPOSED A ONE-HUNDRED AND
TWENTY MONTH (120) FUTURE ELIGIBILITY
TERM (FET) ON APPELLANT RELYING UPON
SUBSTANTIALLY THE SAME CONSIDERATION
IT HAD RELIED UPON TO DENY APPELLANT
PAROLE.
(Raised Below)

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 POINT FOUR

THE BOARD PANEL FAILED TO COMPLY WITH
THE FOLLOWING STATUTES N.J.S.A. 30:123.54 a,
b (1) AND PROVIDE APPELLANT WITH A
COMPLETE PSYCHOLOGICAL EVALUATION
ALSO AS PER N.J.S.A. 30:4-123.52 (e) A RISK
ASSESSMENT AND N.J.A.C. 10A:71-3.7 (a) (f) (h)
(j) (k) AND ASSEMBLY LAW AND PUBLIC
SAFETY COMMITTEE STATEMENT ASSEMBLY
No. 23-L-1997, c. 217.
(Raised below: N.J.S.A. 30:4-123.52 (e)

We accord considerable deference to the Board and its expertise in parole

matters. Our standard of review is whether the Board's decision was arbitrary

and capricious. Acoli v. N.J. State Parole Bd., 224 N.J. 213, 222-23 (2016).

Parole Board decisions are "highly 'individualized discretionary appraisals.'"

Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (quoting Beckworth

v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). We will not disturb the

Board's fact-findings if they "could reasonably have been reached on sufficient

credible evidence in the whole record." J.I. v. N.J. State Parole Bd., 441 N.J.

Super. 564, 583 (App. Div. 2015) (quoting Hare v. N.J. State Parole Bd., 368

N.J. Super. 175, 179 (App. Div. 2004)). The burden is on the challenging party

to demonstrate that the Board's actions were arbitrary, capricious or

unreasonable. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App.

Div. 1993).

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 A Board's decision to grant or deny parole for crimes committed before

August 1997 turns on whether there is a "substantial likelihood" that the inmate

will commit another crime if released. N.J.S.A. 30:4-123.53(a) (1979), amended

by L. 1997, c. 213, § 1; N.J.S.A. 30:4-123.56(c) (1979), amended by L. 1997, c.

213, § 2; Williams v. N.J. State Parole Bd., 336 N.J. Super. 1, 7 (App. Div.

2000); N.J.A.C. 10A:71-3.10(a). The Board must consider the enumerated

factors in N.J.A.C. 10A:71-3.11(b)(1)-(23) in making its decision. The Board,

however, is not required to consider each and every factor; rather, it should

consider those applicable to each case. McGowan v. N.J. State Parole Bd., 347

N.J. Super. 544, 561 (App. Div. 2002).

With these guiding principles in mind, we turn to appellant's contentions

on appeal. He asserts that his success in institutional programs, as well as being

infraction free for many years, undermines the Board's determination that there

is a substantial likelihood he will reoffend if released. He also relies upon what

he describes as his acceptance of his involvement in the death of his victim,

although he only admitted to the Board Panel that he "accidentally

discharge[ed]" his weapon, causing the victim's death. Appellant attributes

issues he had recalling events relating to his crime to his post-traumatic stress

disorder, which he states he suffers from due to his service in the military.

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 Having reviewed the record, including the material in the confidential

appendices, in light of our well-established standards, we affirm the Board's

denial of parole. Appellant's parole eligibility was evaluated by the Board. The

Board considered the relevant factors enumerated in N.J.A.C. 10A:71-3.11(b)

and adopted the determinations made by the Board Panel, which found that there

was a substantial likelihood that appellant would commit a new crime if

released. We find nothing arbitrary or capricious about that decision because it

is supported by sufficient credible evidence in the record.

We likewise are satisfied that the 120-month FET imposed by the Board

is neither arbitrary nor capricious and, again, is supported by credible evidence

in the record. Following the denial of parole, the Board must establish an FET.

N.J.A.C. 10A:71-3.18(a)(2). When parole is denied for an inmate serving a life

sentence, the standard eligibility term is twenty-seven months. N.J.A.C.

10A:71-3.21(a)(1). The Board, however, may exceed the FET guidelines if it

determines that the presumption of twenty-seven months is "clearly

inappropriate due to the inmate's lack of satisfactory progress in reducing the

likelihood of future criminal behavior." N.J.A.C. 10A:71-3.21(d).

Here, the Board adopted the determination of the Board Panel and three-

member panel to establish a 120-month FET, relying upon the written decision

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issued by the three-member panel. In its written decision, the Board detailed

the particular reasons for establishing an FET outside the administrative

guidelines and considered the relevant and applicable aggravating and

mitigating factors. See N.J.A.C. 10A:71-3.21(d) (stating that the Board applies

the factors enumerated in N.J.A.C. 10A:71-3.11 for FET determinations

differing from the guidelines). The 120-month FET, while lengthy, will be

substantially less than ten years because it will be reduced by applicable

commutation, work, and custody credits. Again, we find nothing arbitrary or

capricious about the decision because it is supported by sufficient credible

evidence in the record.

To the extent we have not specifically addressed any of appellant's

remaining arguments, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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