                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5598-17T3

MICHAEL K. ORGERA,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                    Argued December 2, 2019 – Decided January 17, 2020

                    Before Judges Fasciale and Moynihan.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Eric J. Marcy argued the cause for appellant (Wilentz,
                    Goldman & Spitzer, PC, attorneys; Eric J. Marcy, of
                    counsel and on the brief).

                    Tasha Marie Bradt, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
                    Attorney General, of counsel; Tasha Marie Bradt, on
                    the brief).
PER CURIAM

      Appellant Michael K. Orgera appeals from the final decision of the

Department of Corrections (DOC) assigning him to "medium" custody status

assignment, applying an E-1 Code override (E-1 override) pursuant to N.J.A.C.

10A:9-2.14(a)(5), thereby imposing a permanent bar from assignment to any

lesser custody status, N.J.A.C. 10A:9-2.14(d). On appeal, he argues:

            POINT I

            THE PURPOSE OF THE CLASSIFICATION
            PROCESS, I.E., SECURITY, AND THE BLIND
            APPLICATION OF THE E-1 APPLICATION IN THIS
            CASE IS ARBITRARY AND UNFAIR.

                 A.   APPELLANT'S     STANDARDIZED
            OBJECTIVE ASSESSMENT DETERMINED HIS
            ELIGIBILITY FOR MINIMUM CUSTODY STATUS.

                B.  THE APPLICATION OF THE E-1
            OVERRIDE WAS BASED ON ALLEGATIONS TO
            WHICH APPELLANT DID NOT PLEAD GUILTY.

                 C.    THE APPLICATION OF THE E-1
            OVERRIDE FOR ALLEGATIONS NOT THE
            SUBJECT OF THE PLEA OR CONVICTION –
            N.J.A.C. 10A:9-4.7, AS APPLIED IN THIS CASE, IS
            ARBITRARY AND VIOLATES PROCEDURAL
            AND SUBSTANTIVE DUE PROCESS.

                D.  TREATING     THIS   PLEA    AND
            CONVICTION AS A SEX OFFENSE IS CONTRARY
            TO   APPELLANT'S   EXPECTATION     WHEN
            ENTERING INTO THE PLEA AGREEMENT IN

                                                                       A-5598-17T3
                                      2
            THIS CASE AND THE DISCLAIMER IN THE PRE-
            SENTENCE REPORT.

                E.   APPELLANT DOES NOT PRESENT A
            SECURITY RISK THAT JUSTIFIES A "MEDIUM"
            CLASSIFICATION IMPOSED BY THE E-1
            OVERRIDE.

                F.  TO   RE-CLASSIFY   A   NON-SEX
            OFFENSE AS A SEX OFFENSE, CONTRARY TO
            THE TERMS OF A PLEA AGREEMENT AND
            CONVICTION, IS ARBITRARY AND DENIES
            APPELLANT PROCEDURAL FAIRNESS.

We reverse and vacate the DOC's final decision to apply the E-1 override.

      Following his arrest on charges that he sexually assaulted two of his nieces

who were under the age of thirteen, appellant was indicted for two counts of

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (counts one and

four), two counts of second-degree sexual assault—victim under thirteen and

defendant four years older, N.J.S.A. 2C:14-2(b) (counts two and five), and two

counts of third-degree endangering the welfare of a child—sexual conduct which

would impair or debauch a child's morals, N.J.S.A. 2C:24-4(a)(1) (counts three

and six). Appellant accepted the State's plea offer and pleaded guilty to counts

three and six as amended to second-degree endangering—abuse/neglect of a

child by person with legal duty to care, N.J.S.A. 2C:24-4(a)(2). The following

colloquy during the plea hearing established the factual basis for the plea:


                                                                          A-5598-17T3
                                        3
            [DEFENSE COUNSEL:] Now, the statute as it's been
            amended indicates or reads: Any person that has a legal
            duty to take care for the children or has assumed
            responsibility of a child is guilty if they cause the child
            harm that would make the child an abused or neglected
            child as defined in [N.J.S.A.] 9:6-1.
                  So would you agree that you had on numerous
            occasions between those dates, July of 2015 and July of
            2016, assumed responsibility for those two children in
            the Township of Brick?

            [DEFENDANT:] Yes.

            [DEFENSE COUNSEL:]              All right.  Now, the
            subsection of the abuse that we had discussed was that
            you would on those occasions habitually use what
            consists of profane, indecent or obscene language in
            front of both of the children; correct?

            [DEFENDANT:] Yes.

            [DEFENSE COUNSEL:]              All right. And you
            understand by doing that, you caused the child harm,
            both children harm that would make them an abused or
            neglected child as I just defined it?

            [DEFENDANT:] Yes.

      Defendant was subsequently sentenced pursuant to the plea agreement to

State prison. All other counts of the indictment were dismissed.

      Appellant was initially eligible for recommendation for placement into

"minimum" custody status after receiving a custody status score of four on the

Initial Instrument for Male Inmates. See N.J.A.C. 10A:9-2.4(a)(3). A DOC


                                                                          A-5598-17T3
                                        4
technical assistant applied for an E-1 Override to "medium" custody status; the

reason set forth on the request form was: "2 cts EWOC 2º Both with sexual

overtones." After a director approved the request, see N.J.A.C. 10A:9-2.14(a),

appellant filed a grievance, explaining he did not have a sexual conviction. He

received the following reply from Rebecca Smith 1: "You were made aware on

[June 27, 2018] that this was a final decision made by Central office. If you

have further questions, you must write to Central Offices through the kiosk

remedy system." This appeal followed.

        An "appropriate override code" must be applied "when an inmate cannot

be assigned to the recommended custody status indicated by the custody status

score on the Initial . . . [C]lassification Instrument[.]" N.J.A.C. 10A:9-2.14(a).

N.J.A.C. 10A:9-2.14(a)(5) provides:          "Code E-1:      Permanent custody

prohibition/bar. Medium custody status assignment or above only due to sexual

or arson offense convictions pursuant to N.J.A.C. 10A:9-4.7."

        N.J.A.C. 10A:9-4.7(c)(1) lists sexual offenses, including, "[e]ndangering

welfare of children where the official version of the crime indicates that the

inmate engaged in sexual contact pursuant to 2C:24-4(a) or committed an

offense under 2C:24-4(b)(3, 4 or 5)." "Inmates serving sentences" for the


1
    The record does not disclose Rebecca Smith's title.
                                                                          A-5598-17T3
                                         5
enumerated offenses "are not eligible to be considered for any type of reduced

custody status[.]" N.J.A.C. 10A:9-4.7(a). Likewise, "[a]n inmate who has two

or more convictions, either present, prior, or a combination of present and prior"

for the enumerated offenses, "or for attempts or conspiracies to commit these

offenses . . . is not eligible for reduced custody[.]" N.J.A.C. 10A: 9-4.7(c).

       We ordinarily accord a strong presumption of reasonableness to the

decision of an administrative agency, Smith v. Ricci, 89 N.J. 514, 525 (1982),

and give great deference to administrative decisions, State v. Johnson, 42 N.J.

146, 159 (1964). Indeed, we will reverse an administrative decision, only when

we find it to be "arbitrary, capricious or unreasonable[.]" Henry v. Rahway State

Prison, 81 N.J. 571, 579-80 (1980). In determining whether an agency action

was arbitrary, capricious or unreasonable, courts consider whether:

            1) "the agency's action violates express[] or implied
            legislative policies"; 2) "the record [does not] contain[]
            substantial evidence to support the findings on which
            the agency based its action"; and 3) "in applying the
            legislative policies to the facts, the agency clearly erred
            in reaching a conclusion that could not reasonably have
            been made on a showing of the relevant factors."

            [Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186,
            190 (App. Div. 2010) (second and third alterations in
            original) (quoting Circus Liquors, Inc. v. Governing
            Body of Middletown Twp., 199 N.J. 1, 10 (2009)).]



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                                        6
      We also recognize "a reduction in custody status is a matter of privilege,

not of right." Smith v. N.J. Dep't of Corr., 346 N.J. Super 24, 30 (App. Div.

2001) (citing N.J.A.C. 10A:9-4.2). "Classification of prisoners and the decision

as to what privileges they will receive rests solely within the discretion of the

Commissioner of the [DOC]." Ibid. (citing N.J.S.A. 30:1B-6; N.J.S.A. 30:4-

91.1); see also White v. Fauver, 219 N.J. Super. 170, 178-79 (App. Div.),

(finding no constitutionally protected liberty interest in reduced custody status),

modified sub nom., Jenkins v. Fauver, 108 N.J. 239 (1987).

      We are constrained to remand this matter, however, because the procedure

utilized by the DOC in classifying appellant was arbitrary and capricious.

Although the regulatory process requires "any specific information concerning

the reason for the override shall be documented and maintained in the inmate

record," N.J.A.C. 10A:9-2.14(a), we perceive no indication in the record that the

DOC complied with that mandate.

      In its merits brief, the DOC claims that, contrary to appellant's contention

that it should have considered only defendant's convictions, the Institutional

Classification Committee (ICC) was permitted to and did review the judgment of

conviction, presentence report, indictment and a Mental Health Parole Evaluation

"to determine that the official version of his crimes reflected that he engaged in


                                                                           A-5598-17T3
                                        7
sexual contact and was subject to the E-1 override." Further, the DOC states the

presentence report "reflects that [appellant] was indicted on charges that he

sexually assaulted his two young nieces, before eventually pleading . . . guilty

[to] two counts of second-degree [e]ndangering the [w]elfare of a [c]hild[.]"

Although the record contains the documents cited in the merits brief, we are

unable to determine from the brusque reply to appellant's grievance, or any other

record-document prepared in connection with the override, that the now-cited

documents provided the reason for the override.

      Even if appellant's file does contain those documents and the reasons for

the override, we determine the DOC's selection of parts of the cited documents,

and its designation of same as the "official version," was arbitrary and

capricious. "Official version" is not defined in Chapter 9 of the Code. See

N.J.A.C. 10A:9-1.3. The DOC culled select passages from certain documents

in concluding what comprised the undefined standard of "official version."

Moreover, its finding was based upon allegations that the State could not prove

or otherwise chose not to prosecute—charges that were ultimately dismissed. In

doing so, it seemingly disregarded those portions of the regulations that allow

an override in the case of inmates "serving sentences for" the enumerated

offenses, N.J.A.C. 10A:9-4.7(a) (emphasis added), or "[a]n inmate who has two


                                                                         A-5598-17T3
                                       8
or more convictions" for the listed crimes, N.J.A.C. 10A:9-4.7(c) (emphasis

added).

      The endangering the welfare of a child offenses listed in N.J.A.C. 10A:9-

4.7(c)(1) are limited. The first—applicable here—is an endangering offense

"where the official version . . . indicates that the inmate engaged in sexual

contact pursuant to [N.J.S.A.] 2C:24-4(a)[.]"2 N.J.A.C. 10A:9-4.7(c)(1). That

statute does not specifically mention "sexual contact." It states:

            (1) Any person having a legal duty for the care of a
            child or who has assumed responsibility for the care of
            a child who engages in sexual conduct which would
            impair or debauch the morals of the child is guilty of a
            crime of the second degree. Any other person who
            engages in conduct or who causes harm as described in
            this paragraph to a child is guilty of a crime of the third
            degree.

            (2) Any person having a legal duty for the care of a
            child or who has assumed responsibility for the care of
            a child who causes the child harm that would make the
            child an abused or neglected child . . . is guilty of a
            crime of the second degree. Any other person who
            engages in conduct or who causes harm as described in
            this paragraph to a child is guilty of a crime of the third
            degree.

            [N.J.S.A. 2C:24-4(a)(1), (2).]


2
  The other enumerated endangering crimes under N.J.S.A. 2C:24-4(b)(3), (4)
and (5), involve child pornography. As such, they have no relevance to this
case.
                                                                          A-5598-17T3
                                        9
      The judgment of conviction indicates appellant pleaded guilty and was

sentenced on two counts of endangering under N.J.S.A. 2C:24-4(a)(2). That

crime does not require "sexual contact"; if "sexual contact" occurred, it would

have been charged under subsection (a)(1) that criminalizes such "sexual

conduct." See N.J.S.A. 2C:24-4(a)(1). If appellant had pleaded guilty to an

endangering that involved sexual conduct, the sentencing court was required to

impose Megan's Law conditions, see N.J.S.A. 2C:7-2(b)(2), and parole

supervision for life, see N.J.S.A. 2C:43-6.4(a). Neither of those conditions was

imposed on appellant.    The DOC acted arbitrarily in relying on dismissed

charges, for which there was no quantum of proof established, and of which

defendant was not convicted or sentenced, in applying the E-1 override.

      We further conclude the DOC arbitrarily failed to consider the plea

colloquy in making its determination. There is no more official version of

defendant's admissions that formed the basis for his conviction and subsequent

sentence than the transcript of that event. See R. 1:2-2; R. 2:5-3; R. 3:9-2; R.

3:9-3(b). And that official version clearly shows appellant did not plead guilty

to an offense involving sexual contact or conduct. His crime was based on the

use of "profane, indecent or obscene language in front of" his nieces.




                                                                          A-5598-17T3
                                      10
      In light of our holding, we need not address appellant's other arguments,

some of which we would have otherwise declined to consider because they were

raised for the first time on appeal, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,

234 (1973), others which we determine are without sufficient merit to warrant

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

      We reverse and vacate the DOC's final decision to apply the E-1 override.

Ensuing proceedings, if any, shall be consistent with this opinion. We do not

retain jurisdiction.




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                                       11
