Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NOS. A-2895-23 A-3254-23 R.S.,1 Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent. ___________________________ Argued October 14, 2026 – Decided November 9, 2026 Before Judges Rose and Natali. On appeal from the New Jersey State Parole Board. Kevin S. Finckenauer, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Kevin S. Finckenauer, of counsel and on the briefs). Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Jennifer Davenport, 1 We use initials to protect the confidentiality of defendant's mental health diagnoses and evaluations. See R. 1:38-3(a)(2). Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Christopher C. Josephson, on the brief). PER CURIAM These appeals return to us following our prior unpublished decision in which we reversed and remanded the New Jersey State Parole Board's (Board) final decision denying R.S. parole and imposing a 240-month future eligibility term (FET) because it failed to comply with the procedures set forth in Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107 (App. Div. 1986). See [R.S.] v. N.J. State Parole Bd., No. A-0880-15T2 (App. Div. July 16, 2019). In A-2895-23, R.S. challenges an April 24, 2024 decision that once again denied his parole application and imposed a 240-month FET, and in A-3254-23 he seeks disclosure of withheld psychological evaluations and a new parole hearing where those materials may be considered. In light of the intervening decision in In re Petition for Rulemaking to Amend N.J.A.C. 10A:71-3.11, 262 N.J. 428 (2026), and because both parties agree that further proceedings before the Board are appropriate, we vacate the Board's April 24, 2024 final agency decision and remand for a de novo hearing. On remand, the Board shall reconsider its reliance on R.S.'s remote disciplinary history consistent with Berta v. N.J. State Parole Bd., 473 N.J. Super. 284 (App. A-2895-23 2 Div. 2022), address disclosure of any psychological evaluations in a manner consistent with Thompson and In re Petition, and expressly consider R.S.'s proposed placement in the PROMISE program to the extent it bears on the adequacy of his parole plan and support system. R.S. is serving a life sentence with thirty years of mandatory parole ineligibility for two counts of murder. He first became eligible for parole in 2014. After the Board denied parole and imposed a 240-month FET, R.S. appealed. In our prior opinion, we reversed and remanded because the Board failed to follow the procedures mandated in Thompson when it withheld from R.S. an in-depth psychological evaluation upon which it had relied on in its decision. [R.S.], No. A-0880-15T2, slip op. at 1. We explained if the Board wished to withhold the report, it was required to comply with Thompson and if it intended to disclose the report, reconsideration could occur only after R.S. and his counsel had an opportunity to review it and prepare a response. Id. slip op. at 4. We also noted although the Board provided reasons for establishing a 240- month FET, it was required to justify that extraordinary term by linking it to the future steps it required R.S. to take before he again would be eligible for parole. Ibid. A-2895-23 3 On remand, the Board vacated its prior decisions and conducted a new hearing. Before that hearing, R.S. requested copies of his 2014 and 2022 pre - parole psychological evaluations. The Board denied his request and stated only that the reasons for nondisclosure were noted in his file. The record reflects documents the Board characterizes as "Confidential Reports Considered" that list the reports deemed confidential and includes a checklist of reasons for nondisclosure. R.S. maintains the Board never provided adequate, specific reasons for withholding the evaluations, particularly as to the 2014 report. The Board maintains appellate counsel subsequently received the evaluations pursuant to a confidentiality arrangement and included them in the confidential appendix. Notwithstanding this disclosure to counsel, R.S. maintains that this limited disclosure does not satisfy Thompson or due process. After the new hearing, a two-member panel again denied parole and referred the matter to a three-member panel for establishment of an FET outside the presumptive guidelines. The panel relied on the facts and circumstances of the murders, R.S.'s incarceration for multiple offenses, prior institutional disciplinary infractions, insufficient problem resolution, lack of an adequate parole plan, and his risk assessment evaluation. A three-member panel relied A-2895-23 4 on the same factors in imposing the 240-month FET, and the full Board affirmed in its April 24 final agency decision. The Board's decision again relied in part on R.S.'s institutional disciplinary history, although the most recent infraction occurred on May 26, 1999, over twenty-five years ago. It also continued to withhold his psychological evaluations. The Board's "Confidential Reports Considered" form listed reasons for the nondisclosure of R.S.'s 2022 psychological evaluation. Those reasons included fear of retaliation against the evaluator, possible manipulation of future evaluations, concern that disclosure would make R.S. less forthcoming in later evaluations, the need to permit evaluators to assess inmates fairly without reprisal, and danger to life or physical safety. After the appeal was fully briefed, R.S. submitted a Rule 2:6-11(d) letter calling our attention to In re Petition. As noted, at oral argument before us, both parties agreed that further proceedings before the Board were appropriate in light of In re Petition and the issues concerning the Board's treatment of R.S.'s disciplinary history. Our "review of [an] administrative agency action is limited." Russo v. Bd. of Trs., PFRS, 206 N.J. 14, 27 (2011). We may not disturb a Parole Board's determination absent a showing that it was arbitrary, capricious, or A-2895-23 5 unreasonable. Trantino v. State Parole Bd. (Trantino IV), 154 N.J. 19, 24-25 (1998). The burden rests with the inmate to demonstrate that the Board's actions were unreasonable. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002). The Board's decisions are highly "individualized discretionary appraisals" and are entitled to deference based on the Board's "expertise in the specialized area of parole supervision." Trantino v. State Parole Bd. (Trantino VI), 166 N.J. 113, 173 (2001); J.I. v. N.J. State Parole Bd., 228 N.J. 204, 230 (2017). Therefore, a parole decision cannot be sustained if it "either violates legislative policy, is not supported by 'substantial evidence' in the record, or 'could not reasonably have been made on a showing of the relevant factors.'" Acoli v. State Parole Bd., 250 N.J. 431, 455 (2022) (citing Trantino IV, 154 N.J. at 24-25). We agree with the parties that further proceedings before the Board are appropriate. Three cases primarily inform that conclusion. First, in Berta, we held the Board must account for the temporal remoteness of disciplinary infractions and found it inaccurate to characterize infractions as "persistent" given they were followed by a lengthy period of infraction-free conduct. In that context, we determined the Board must explain why those dated infractions, viewed in the context of the inmate's subsequent institutional history, support a A-2895-23 6 finding that the inmate is substantially likely to reoffend. 473 N.J. Super. at 314-15. Second, in Thompson, we held that inmates have a limited due process right to disclosure of records considered in parole proceedings, subject to particularized confidentiality determinations. 210 N.J. Super. at 120-21, 123- 24. Third, more recently, in In re Petition, our Supreme Court held the current version of N.J.A.C. 10A:71-2.2 was facially invalid because it operated as a categorical bar to the disclosure of medical, psychiatric, and psychological records. 262 N.J. at 439, 443. The court reaffirmed that Thompson remains the governing standard and any withholding determination must be made on a case- by-case basis. Id. at 443. The Board's decision rested in part on R.S.'s institutional disciplinary history with his last infraction occurring in March 1999. In light of Berta's instruction that past infractions must be evaluated in the context of their temporal remoteness and dated infractions cannot be characterized as "persistent" when they are followed by a lengthy period of infraction -free conduct, the Board should reconsider the weight assigned to that history and explain with greater precision why dated infractions, viewed in the context of A-2895-23 7 the inmate's subsequent institutional history, support a finding of a substantial likelihood of future criminal conduct. See Berta, 473 N.J. Super. at 314-15. During oral argument, the Board acknowledged its obligation here. Further, the Board's continued withholding of the psychological evaluations from R.S. requires further fact finding in light of In re Petition. In Thompson, we recognized a limited due process right to disclosure of records considered in parole proceedings, subject to particularized confidentiality determinations. 210 N.J. Super. at 120-21, 123-24. In re Petition held that a rule operating as a categorical bar to the disclosure of medical, psychiatric, and psychological records is incompatible with Thompson's case-by-case approach. 262 N.J. at 439, 443. Because the Board identified the psychological evaluations as affecting the parole denial and FET determination, it must, before the de novo hearing, reconsider disclosure on an individualized, case-specific basis and proceed thereafter in conformity with Thompson and In re Petition. As noted, the reports were not provided to R.S. personally before the rehearing, but only to his appellate counsel pursuant to a confidentiality agreement. Whether that limited disclosure was sufficient is one of the issues that should also be addressed by the Board light of In re Petition's reaffirmation of Thompson's case-specific A-2895-23 8 approach. If the Board determines that any report, or any portion of a report, should continue to be withheld from R.S. personally, it shall make that determination on a particularized basis consistent with those authorities. Even were we to accept the Board's arguments that its post-remand checklists memorialized the reasons for failing to disclosure the reports, they are wholly inadequate under Thompson and In re Petition because those forms do not reveal or explain reasons specific to the withheld reports. Rather, the checklists contain boilerplate reasons and fail to explain in any meaningful fashion why R.S.'s reports, contrary to all psychological reports generally, pose the ascribed risks and they do not address whether any portion of the report could be disclosed with explanatory redactions. That is not the specific determinations required by Thompson and In re Petition. We add one further point for guidance as to the scope of the remand proceeding based on the parties' contentions during oral argument. R.S. contends the Board improperly relied on the asserted lack of an adequate support system while failing to account for his efforts to obtain placement in the PROMISE program. The Board maintains that it found R.S. unsuitable for parole whether to a program or to the community and it had no obligation to secure a program placement for him. We do not decide on this record whether A-2895-23 9 the Board bears any affirmative obligation to secure placement for an inmate into the PROMISE program or a comparable structured setting. We note, however, if the Board relies on the asserted inadequacy of R.S.'s release plan or support system as a basis to deny parole, it should expressly consider the evidence relating to R.S.'s efforts to obtain placement, including into the PROMISE program, and explain how that issue bears on the statutory parole standard. Finally, if the Board again imposes an FET outside the presumptive range, it shall explain with specificity why that term is appropriate and how its length corresponds to concrete steps R.S. must complete before future consideration. We therefore vacate the Board's April 24, 2024 final agency decision and remand for a de novo hearing consistent with this opinion. On remand, the Board shall reconsider R.S.'s remote disciplinary history under Berta, address disclosure of the psychological evaluations to R.S. personally in conformity with Thompson and In re Petition, and expressly address R.S.'s proposed placement in the PROMISE program to the extent it bears on his parole plan and support system, and, if it again imposes an FET outside the presumptive range, explain with specificity the basis for that term. A-2895-23 10 In light of our decision to vacate and remand for a de novo hearing, we do not resolve R.S.'s remaining arguments, including those concerning the Board’s consideration of his post-conviction litigation history, treatment of his mental health evidence, the posture of the renewed hearing as a first or second proceeding, and whether the present record independently compels parole. The fact that we have not addressed these arguments should not be interpreted as a reflection of our views on their respective merits, or that R.S. has waived them. Those contentions may be renewed before the Board on remand to the extent relevant on the fuller record developed consistent with this opinion. Vacated and remanded. We do not retain jurisdiction. A-2895-23 11