SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4788-94T1
A-4790-94T1
THOMAS TRANTINO,
Appellant,
v.
NEW JERSEY STATE PAROLE
BOARD, NEW JERSEY
DEPARTMENT OF CORRECTIONS
AND DONALD LEWIS, SUPT.,
Respondents.
__________________________
THOMAS TRANTINO,
Appellant,
v.
NEW JERSEY STATE PAROLE
BOARD AND NEW JERSEY
DEPARTMENT OF CORRECTIONS,
Respondents.
_________________________________________________________________
Argued September 17, 1996 - Decided January 15, 1997
Before Judges Pressler, Stern and Humphreys.
On appeals from the New Jersey State Parole
Board and Department of Corrections and the
Superior Court of New Jersey, Law Division,
Camden County.
Roger Lowenstein argued the cause for appellant
(Edward A. Jerejian, on the brief; Mr. Lowenstein,
on the supplementary brief).
Howard J. McCoach and Dianne M. Moratti,
Deputy Attorneys General, argued the cause for
respondents (Joseph L. Yannotti and Mary C.
Jacobson, Assistant Attorneys General, of counsel;
Jennifer L. Kleppe, Mr. McCoach, Ms. Moratti and
Andrew R. Sapolnick, Deputy Attorneys General,
on the brief; Mr. McCoach, on the supplementary brief).
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 (1965), cert. denied,
382 U.S. 993,
86 S.Ct. 573,
15 L.Ed.2d 479 (1966), reh'g denied,
383 U.S. 922,
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
(1982), and that "Trantino was guilty of two murders," id. at
375, n. 9, it is undisputed before us that the indictment alleged
only one count of murder and that only one sentence for murder
was imposed.See footnote 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imposed, N.J.S.A. 2A:113-4 (now repealed), Trantino's death
penalty was converted to a single sentence of life imprisonment.
State v. Funicello,
60 N.J. 60 (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. As a result of that sentence,
"Trantino became eligible for parole in 1979," Trantino Parole
Application, supra, 89 N.J. at 352, 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.
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.]
The insanity defense was rejected at trial, and the Supreme Court
questioned the sufficiency of the proofs to support its
consideration. Id. at 367. The opinion noted that the diagnosis
of defendant's expert "was sociopathic-personality disturbance,
drug and alcoholic addiction with emotional instability, and
depressive reaction, situational in character." Id. at 365. 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.
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, 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.
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,
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. 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. The Court therefore
remanded the matter to the Parole Board "to reconsider and
redetermine Trantino's fitness for parole." Id. at 377.
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:98-4.
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; 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. 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.See footnote 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
Parole 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 pre-Code 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 (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 F.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.See footnote 3
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 hearings, 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 case, 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. 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.]
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 877 (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.See footnote 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
a mandatory thirty years before parole eligibility, see N.J.S.A.
2C:11-3b, 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.
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.A.C. 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 case 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 their 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 case 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 Mr. 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.
Regarding 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.See footnote 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 case
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 13, 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.A.C. 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 killing 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 Mr. 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)(1),(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 found 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.A.C. 10A:71-3.21(d). It is the Adult Panel's belief that
a future eligibility term pursuant to
N.J.A.C. 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 1993 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.
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 (App. Div. 1974), certif. denied, 67 N.J. 94 (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, ¶ 4, 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.
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. 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 (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."
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 (App. Div.), certif. denied, 111 N.J. 649 (1988):
A denial of parole is subject to judicial review for arbitrariness. In re Hawley, 98 N.J. 108, 112-113 (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 (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." 613 Corp. v.
State of N.J. Div. of State Lottery,
210 N.J.
Super. 485, 495 (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.]
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. Decisions 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 (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. 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.
[N.J. State Parole Bd. v. Cestari, supra, 224
N.J. Super. at 548, n.6.]
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.A.C. 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. 2:4-1(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.See footnote 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.A.C. 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.A.C. 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 (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 (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 cannot
find in the record any reasons rendered by him or his office for
the decision not to transfer Trantino.
However, N.J.A.C. 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, the decision (embodied in a
memora