                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5490-11T3

W.B.,
                                        APPROVED FOR PUBLICATION
     Appellant,
                                             January 29, 2014
v.
                                             APPELLATE DIVISION
NEW JERSEY DEPARTMENT OF
CORRECTIONS,

     Respondent.

________________________________________________________________

            Submitted October 1, 2013 – Decided January 29, 2014

            Before    Judges     Espinosa,     Koblitz      and
            O'Connor.

            On appeal from the New Jersey Department of
            Corrections.

            W.B., appellant pro se.

            John J. Hoffman, Acting Attorney          General,
            attorney for respondent (Lisa A.          Puglisi,
            Assistant Attorney General, of            counsel;
            Justin L. Conforti, Deputy Attorney       General,
            on the brief).

     The opinion of the court was delivered by

ESPINOSA, J.A.D.

     In Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176

(App. Div. 2011), we considered whether the Commissioner's broad

authority    to   select   the   appropriate    institution       to   house
inmates, N.J.S.A. 30:4-91.2, is limited by the Sex Offender Act

(SOA), N.J.S.A. 2C:47-1 to -10.                In deciding the appeal of an

inmate   who    challenged      his    transfer   from     the    general    prison

population to the Adult Diagnostic Treatment Center (ADTC), we

concluded that the Commissioner of the Department of Corrections

(DOC) lacked the discretion to transfer inmates to the ADTC who

did not meet the sentencing parameters of the SOA.                      Williams,

supra,   423    N.J.   Super.     at    186.      W.B.'s       appeal   entails      a

different      challenge   to     the    authority       of    the   Commissioner

regarding assignment to the ADTC.               Convicted as a sex offender

in New Hampshire, his custody was transferred to New Jersey

pursuant to the Interstate Corrections Compact (the Compact),

N.J.S.A. 30:7C-1 to -12;1 N.H. Rev. Stat. Ann. §§ 622-B:1 to -B:3

(2013), where he was assigned to the ADTC.                    Following Williams,

however, he was reassigned to a wing for inmates who were not

sentenced under the SOA and appealed that decision, arguing that

the Compact required that he be treated as an ADTC-eligible

offender.      For the reasons that follow, we affirm.




1
   As codified, the Compact "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.'" Van Wickle v. N.J. Dep't of Corr., 370 N.J.
Super. 40, 45 (App. Div. 2004) (quoting N.J.S.A. 30:7C-4(a)).



                                         2                                  A-5490-11T3
                                       I.

    In April 2009, W.B. pled guilty to aggravated felonious

sexual   assault     of   a   victim   under   the    age   of   thirteen,   and

aggravated felonious sexual assault, N.H. Rev. Stat. Ann. § 632-

A:2(II), for offenses committed against his granddaughter and

his daughter.        He was sentenced to an aggregate prison term of

five to fifteen years and ordered to "participate meaningfully

and complete any counseling, treatment and educational programs

as directed by the correctional authority or Probation/Parole

Officer."    The New Hampshire Department of Corrections Initial

Assessment Recommendations & Pre-release Plan Authorization Form

referred W.B. to the Sex Offender Treatment Program and included

the recommendation that W.B. needed "Sex Offender Evaluation &

Treatment as Directed," "Substance Abuse Eval. & Treatment as

Directed," and "Self-Help" as recommended by the court or the

New Hampshire Department of Corrections.

    Due     to   a   potential    conflict     of    interest    involving   the

director of the New Hampshire Sex Offender Treatment Program,

New Hampshire's Deputy Compact Administrator made a request to

New Jersey to house W.B. pursuant to the Compact, noting that

W.B. "needs Sex Offender Treatment and we are requesting that he

do it while housed at your facility."                  The DOC approved the

transfer.




                                        3                              A-5490-11T3
      W.B. was transferred to the custody of the DOC on January

13, 2010, and assigned to the ADTC.              The ADTC is defined as "the

correctional facility designated to house persons who have been

sentenced pursuant to N.J.S.A. 2C:47-1 et seq. and 2A:164-1 et

seq.," N.J.A.C. 10A:1-2.2, and includes a Therapeutic Community

for sex offenders who have been found clinically eligible for

the specific treatment program under the SOA.                   W.B. was placed

in the Therapeutic Community with sex offenders found clinically

eligible under the SOA.           However, because W.B. was sentenced

under New Hampshire's sex offender statute and not under the

SOA, he was classified as a Not Under the Act (NUA) inmate.                       DOC

has   defined     that   term    as   one      who   is    "not      eligible     for

specialized treatment under N.J.S.A. 2C:47-3(h)."                    See Williams,

supra, 423 N.J. Super. at 180.

      Treatment     updates     for   W.B.      dated     September     24,     2010,

February 3, 2011, July 7, 2011, January 25, 2012, and October

23, 2012, which include updates before and after our decision in

Williams, uniformly begin with a statement noting W.B. was not

sentenced   under    the   SOA    "and       therefore    is   not    mandated     to

participate in the sex offender treatment program at the ADTC."

Despite the lack of a mandate, W.B. voluntarily and actively

participated in the One Wing Therapeutic Community, which was

described as "the most intense level of treatment offered."                       His




                                         4                                A-5490-11T3
progress in therapy was duly noted and, in February 2011, it was

recommended that he advance from a Level III group to Phase II

status.

    Williams was decided in December 2011.                            In addition to

holding that the Commissioner lacked authority to assign NUA

inmates to the ADTC for treatment and housing with ADTC-eligible

inmates, Williams, supra, 423 N.J. Super. at 189, we ordered the

Commissioner to review the status of NUA inmates at the ADTC and

"take   the    steps     necessary      to    ensure    that    only    ADTC-eligible

offenders are incarcerated there, unless it is administratively

feasible      to   establish   a    separate         program"   for    the   non-ADTC-

eligible inmates at the ADTC.                Ibid.

    W.B. remained in the ADTC Therapeutic Community until April

4, 2012, when he was moved from a wing housing ADTC-sentenced

inmates    participating           in   the      Therapeutic       Community,       and

reassigned to a wing designated for NUA inmates.                       W.B. requested

that a psychological examination be conducted of him so that his

eligibility        for     sex-offender-specific               treatment     in     the

Therapeutic Community might be reconsidered.                       His request was

denied on the ground that the requisite testing "could only be

completed in response to a court order or as a courtesy to the

[DOC], should they request it."




                                             5                                A-5490-11T3
    In    May   2012,   W.B.    filed   an    Inmate   Remedy    System     Form,

challenging DOC's decision to classify him as an NUA inmate.                     He

stated,

           Under the Interstate Compact, I am to be
           treated as if I had committed my offense in
           New   Jersey.      I   am   supposed   to   be
           participating in the same education and work
           programs as ADTC-sentenced inmates.      It is
           the     responsibility     of     the     ADTC
           Administration to make available treatment
           programs   consistent   with   my   individual
           needs, as well as to ensure that my
           committing court's sentences and orders are
           faithfully executed.

    In    its   response,      the   ADTC    administration     stated    W.B.'s

"assertion that the Compact is being violated is unfounded,"

that his "current housing is appropriate," and that he would be

housed as NUA.2     The administration suggested that W.B. could

write to the Interstate Services at the Central Office regarding

the provisions of the Compact.

    The treatment update dated October 23, 2012 reported that,

after W.B. was reassigned to a group for NUA inmates in April

2012, he participated in sex offender treatment.                   The update

provided a review of that treatment for the period from June 25


2
     W.B. submitted a similar complaint by another inmate
transferred to the ADTC under the Compact with a response from
the ADTC that allegedly contradicted the response to his Inmate
Remedy System Form. However, conflicting statements within that
response preclude any determination as to whether the response
was contradictory.



                                        6                                A-5490-11T3
through October 23, 2012, and identified his treatment goals for

the next six months.

    W.B.    appealed       from   the   administrator's        decision.         After

that decision was upheld, he filed an appeal from the final

agency    decision     and   presents        the   following    issues     for     our

consideration:

            POINT I

            THE WILLIAMS RULING DID NOT DISCUSS HOW THE
            RULING   SHOULD    APPLY  TO    OUT-OF-STATE
            TRANSFERS, AND IS BEING APPLIED IMPROPERLY
            TO TRANSFERRED INMATES.

            POINT II

            THE DEPARTMENT'S DECISION TO APPLY WILLIAMS
            TO   OUT-OF-STATE   INMATES  VIOLATES   THE
            INTERSTATE COMPACT.

            POINT III

            APPELLANT HAS A LIBERTY INTEREST ATTACHED TO
            BEING   OFFERED   THE   SAME  SEX   OFFENDER
            TREATMENT PROGRAM BEING OFFERED TO NEW
            JERSEY INMATES SENTENCED UNDER THE NEW
            JERSEY SEX OFFENDER ACT.

    "The    judicial       capacity     to    review     administrative       agency

decisions is limited."            Brady v. Bd. of Review, 152 N.J. 197,

210 (1997).    An appellate court can reverse only if the agency's

decision was "arbitrary, capricious or unreasonable or it is not

supported by substantial credible evidence in the record as a

whole."     Henry     v.   Rahway   State      Prison,   81    N.J.   571,    579-80

(1980); Brady, supra, 152 N.J. at 210.                   "[I]nterpretations of



                                         7                                   A-5490-11T3
the   statute   and      cognate    enactments        by    agencies   empowered     to

enforce them are given substantial deference. . . ."                         Williams,

supra, 423 N.J. Super. at 182-83; (quoting Klumb v. Bd. of Educ.

of the Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14,

24 (2009)).     However, an agency's interpretations "'cannot alter

the terms of a legislative enactment nor can they frustrate the

policy embodied in [a] statute.'"                     Williams, supra, 423 N.J.

Super.   at   183     (alteration     in       original)     (citations      omitted).

Furthermore, "[a]n appellate tribunal is . . . in no way bound

by the agency's interpretation of a statute or its determination

of a strictly legal issue."                Mayflower Sec. Co. v. Bureau of

Sec., 64 N.J. 85, 93 (1973); see also Shim v. Rutgers, 191 N.J.

374, 384 (2007).

                                        II.

      It is evident that the DOC's decision to move W.B. from the

wing designated for ADTC inmates was prompted by our decision in

Williams.       Although       we    did        not     explicitly      address     the

circumstances       of   an   out-of-state        sex      offender    who   has   been

transferred to the custody of the DOC, our reasoning for the

limitations upon the Commissioner's discretion to assign inmates

to the ADTC remains applicable.

      As we observed in Williams, the SOA "created a detailed

sentencing program for certain types of sex offenders."                             423




                                           8                                  A-5490-11T3
N.J. Super. at 178.          Although we recognized the broad discretion

and authority of the Commissioner to "designate as a place of

confinement any available, suitable, and appropriate institution

or facility" for an inmate and to transfer the inmate "at any

time," id. at 181, we nonetheless found ourselves "constrained"

to    apply      the     legislatively         mandated        restrictions       on     the

Commissioner's discretion and authority imposed by the specific

language of the SOA.               The program created by the legislature

permits    the    confinement       of    an       offender    at    the   ADTC   only      if

specific criteria are met: (1) the offender must be convicted of

one   of   the    SOA's     enumerated         offenses;       (2)   there   must      be   a

finding,      following      a     psychological         examination,         that     "the

offender's conduct was characterized by a pattern of repetitive,

compulsive behavior"; (3) the offender must be both amendable to

sex   offender         treatment    and    willing       to     participate       in   such

treatment; and (4) following review, a judge must confirm the

requisite findings. N.J.S.A. 2C:47-1; N.J.S.A. 2C:47-3(a).

      In In re Civil Commitment of W.X.C., 204 N.J. 179 (2010),

cert. denied, __ U.S. __, 131 S. Ct. 1702, 179 L. Ed. 2d. 635

(2011), the Supreme Court compared the scope of the Sexually

Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38 with

that of the SOA, noting that the Legislature used "far narrower"

defining statutory language in the SOA.                       W.X.C., supra, 204 N.J.




                                               9                                  A-5490-11T3
at 199.     The Court found that, "[a]s defined by statute, ADTC

treatment . . . is directed only at specific offenders" and

further, that the treatment "is particularized and is designed

to meet the needs of the specific population of sex offenders

that   it   intentionally   targets."         Id.   at      198.    The   Court

described     the    Legislature's        purpose     and     the   practical

considerations that influenced its reasoning:

            [W]hen creating the ADTC, the Legislature
            intentionally designed a program that could
            most   effectively   target   a   particular
            population    that    available    treatment
            modalities could benefit.   In that context,
            making certain that the offenders admitted
            into the program are only those who meet the
            statute's diagnostic criteria is a critical
            ingredient in the program's success.    More
            to the point, the program operates with
            limited numbers of beds, for clinically
            significant reasons, and highly trained, but
            limited, numbers of personnel, with the
            result that it is not appropriate to expand
            it to offenders . . . who do not meet the
            admission criteria.

            [Id. at 199 (emphasis added).]

       From the outset, W.B. was identified as an NUA inmate who

had not been sentenced under the Act.          Although W.B. pled guilty

to offenses comparable to those enumerated in the SOA and has

manifested his amenability and willingness to participate in sex

offender treatment at the ADTC, he was not sentenced pursuant to

the    detailed     sentencing   program       that      required     both     a

psychological determination and judicial confirmation, following



                                     10                               A-5490-11T3
review,     that    he   satisfied    the     statutory   criteria.         The

legislative purpose in limiting ADTC treatment to a carefully

targeted population of offenders, a "critical ingredient in the

program's    success,"      ibid.,   applies    equally    to   a   potential

expansion of the ADTC program to him.           As we have noted, the DOC

has implemented a program of sex offender treatment                   for NUA

offenders in which W.B. has participated.            Particularly in light

of our decision in Williams, it was not arbitrary, capricious,

or unreasonable for the Commissioner to classify W.B. as an NUA

inmate and designate his confinement accordingly.

                                     III.

     We next consider W.B.'s argument that the Compact and the

Contract for Services between the State of New Hampshire and the

State of New Jersey for the Implementation of the Interstate

Corrections Compact (the Contract) both require the DOC to treat

him as an ADTC-eligible offender.            He contends that the failure

to   provide       him   with    treatment    provided    to    ADTC-eligible

offenders effectively alters his sentence, in violation of the

Compact.    He also argues that the Compact requires New Jersey to

treat him as if he committed his offenses in New Jersey.                      We

disagree with each of these propositions.

     N.J.S.A.       30:7C-5(e)    provides,    in   pertinent    part,    "All

inmates who may be confined in an institution pursuant to the




                                      11                              A-5490-11T3
provisions of this compact shall be treated in a reasonable and

humane manner and shall be treated equally with such similar

inmates of the receiving state as may be confined in the same

institution."      (Emphasis     added).      Similarly,   the    Contract

requires the receiving state "to make available to [transferred

inmates]   the   programs   of   training    and   treatment     which   are

consistent with their individual needs."           However, Paragraph 12

of the Contract limits the scope of the obligation, stating,

           Nothing herein contained shall be construed
           to require the receiving state or any of its
           institutions     to    provide    treatment,
           facilities, or programs for any inmate
           confined    pursuant   to    the  Interstate
           Corrections   Compact  which   it  does  not
           provide for similar inmates of the receiving
           state.

    The thrust of W.B.'s argument is that the "similar inmates

of the receiving state" with whom he is on par are the ADTC-

eligible offenders.    As we have noted, although W.B. shares some

of the attributes of ADTC-eligible offenders, he does not meet

all the criteria established by the Legislature as prerequisites

to ADTC status.     Therefore, just as the DOC identified him at

the outset, W.B. is similarly situated to the NUA offenders

housed separately at the ADTC.           We therefore conclude that no

violation of the Compact has occurred by virtue of a failure to

treat him equally with similar inmates in New Jersey.




                                    12                             A-5490-11T3
      W.B. was sentenced under New Hampshire's statutes, which

govern "any matter relating to an inmate confined pursuant to"

the Contract.      See also N.J.S.A. 30:7C-5(c).           He has identified

no New Hampshire statute analogous to the SOA in terms of its

specific and detailed sentencing program that would require New

Jersey   to   afford     him   the   treatment     explicitly     provided   to

offenders who satisfy the SOA criteria.              Moreover, the actions

of the DOC here did not derogate the sentence imposed upon him,

which ordered him to "participate meaningfully and complete any

counseling, treatment and educational programs as directed by

the correctional authority or Probation/Parole Officer."                 Thus,

the nature of sex offender treatment W.B. was to receive in New

Hampshire as part of his sentence was to be determined by the

correctional authority, not mandated by either a New Hampshire

statute or the sentence imposed.             The New Hampshire Department

of   Corrections    referred     him   to    its   Sex   Offender   Treatment

program.      However,    W.B.   has   not    identified    any   recommended

treatment that has not been provided to him in New Jersey.

      Further, although not dispositive to our analysis, we note

that the New Hampshire Department of Corrections rebuffed W.B.'s

complaint that he was being denied treatment due him pursuant to

the Compact.    In a letter to W.B. dated June 27, 2012, the New




                                       13                             A-5490-11T3
Hampshire     Department     of     Corrections        Administrator          of

Classification stated:

            It is our understanding that you are still
            being    afforded     the     opportunity     to
            participate in Sex Offender Programming.
            That is the word we have received from New
            Jersey.      Although   you    may   be   housed
            separately due to recent litigation it has
            not   affected   your   ability    to   continue
            programming.    New Jersey is aware that you
            are required by New Hampshire to participate
            and satisfactorily complete Sex Offender
            Programming.       They   have    received   all
            pertinent information regarding you and your
            sentence and requirements prior to you going
            there.

    In sum, we are satisfied that the Commissioner's actions

here did not violate the Compact or the Contract.

                                    IV.

    Finally,     W.B.   argues     that    the    disparity    between       the

treatment he receives as an NUA inmate and that afforded ADTC-

eligible    offenders   deprives     him     of   a   fundamental      liberty

interest and the equal protection of the laws.                This argument

lacks   sufficient   merit   to    warrant    discussion      in   a   written

opinion, R. 2:11-3(e)(1)(E).

    Affirmed.




                                    14                                 A-5490-11T3
