                                NOT FOR PUBLICATION WITHOUT THE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-3469-17T4


QUINCELL ADAMS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
______________________________

                    Submitted January 23, 2019 – Decided February 15, 2019

                    Before Judges Yannotti and Rothstadt.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Quincell Adams, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Suzanne M. Davies,
                    Deputy Attorney General, on the brief).
PER CURIAM

      Quincell Adams, an inmate in the State's correctional system, appeals

from a final determination of the New Jersey Department of Corrections

(NJDOC), which denied Adams's application for transfer to a halfway house in

a residential community release program (RCRP). We reverse and remand the

matter to the NJDOC for reconsideration and issuance of a new decision.

      Adams is presently incarcerated at South Woods State Prison (SWSP) in

Bridgeton. He is serving a fifteen-year custodial sentence, with a mandatory

minimum term of twelve years, eight months, and twenty-nine days, as a result

of his conviction of conspiracy to commit murder and unlawful possession of a

handgun. He will become eligible for parole on September 12, 2019.

      On October 18, 2017, Adams submitted an application for transfer to a

RCRP. The Institutional Classification Committee (ICC) at SWSP approved

Adams's application. However, by letter dated November 8, 2017, the NJDOC's

Office of Community Programs and Outreach Services (OCPOS) denied the

application based on the nature and seriousness of the offense for which Adams

was incarcerated.

      In January or February 2018, Adams submitted another application for

transfer to a RCRP. The ICC approved the transfer. By letter dated March 9,


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2018, the OCPOS denied the application based on the nature of the offense. The

letter stated that Adams should participate in "[a]nger [m]anagement

[p]rogramming." This appeal followed.

      On appeal, Adams argues that the NJDOC's decision is arbitrary,

capricious, and unreasonable. He contends he "has reached his rehabilitative

potential within the confines of . . . [the] prison setting," and that the only means

to achieve "his full rehabilitative potential" and gradual reintegration into

society is a transfer to a community-based, halfway-house. Adams asserts the

transfer to a RCRP should be made while he is an inmate to ensure "the

legitimate interests of all parties."

      We note initially that appellate review of a final decision of an

administrative agency is limited. In re Stallworth, 208 N.J. 182, 194 (2011)

(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We will

uphold an agency's final decision in the absence of "a clear showing that [the

decision] is arbitrary, capricious, or unreasonable, or that it lacks fair support in

the record." J.B. v. N.J. State Parole Bd., 229 N.J. 21, 43 (2017) (quoting In re

Herrmann, 192 N.J. 19, 27-28 (2007)).

      "In determining whether [an] agency['s] action is arbitrary, capricious, or

unreasonable," we consider:


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                                         3
             (1) whether the agency's action violates express or
             implied legislative policies . . .; (2) whether the record
             contains substantial evidence to support the findings on
             which the agency based its action; and (3) whether 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.

             [In re Stallworth, 208 N.J. at 194 (quoting In re Carter,
             191 N.J. 474, 482-83 (2007)).]

       It is well-established that inmates do not have a constitutionally-protected

interest in an initial placement in a RCRP. See Shabazz v. N.J. Dep't of Corr.,

385 N.J. Super. 117, 124 (App. Div. 2006) (citing Trantino v. N.J. State Parole

Bd., 296 N.J. Super. 437, 464 (App. Div. 1997), modified in part on other

grounds and aff'd, 154 N.J. 19 (1998)). However, in reviewing an agency's

decision, we must determine whether its action is consistent with the applicable

law. See In re Stallworth, 208 N.J. at 194 (quoting In re Carter, 191 N.J. at 482-

83).

       When an individual is convicted of an offense and committed to an

institution, the Commissioner of the NJDOC or his designee "may designate

. . . any available, suitable, and appropriate institution or facility" as a place of

confinement.     N.J.S.A. 30:4-91.2.     The term "facility" "include[s] private




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                                         4
nonprofit community-based residential treatment centers which provide for the

care, custody, subsistence, education, training and welfare of inmates." Ibid.

      Under the NJDOC's rules, an ICC makes decisions on various matters,

including participation in a RCRP, in accordance with specified criteria

enumerated in N.J.A.C. 10A:9-3.3(a). See N.J.A.C. 10A:9-3.1. The criteria

include the inmate's age, family status, correctional facility adjustment, the

nature and circumstances of the inmate's "present offense," and "[a]ny other

factor pertinent to the inmate's case." N.J.A.C. 10A:9-3.3(a)(3), (4), (6), (11),

and (23).

      The ICC of the prison where an inmate is currently housed "may approve

an eligible inmate for participation in a [RCRP] in accordance with [the]

applicable provisions of N.J.A.C. 10A:20[-1 to -4.43] when the inmate has been

classified to full minimum custody status and meets the criteria for assignment

to the program." N.J.A.C. 10A:9-3.12. General eligibility criteria for RCRPs

are set forth in N.J.A.C. 10A:20-4.4. Among other things, an inmate seeking

transfer to a RCRP must "[b]e classified [as] full minimum by the [ICC]," "[n]ot

demonstrate an undue risk to public safety," and "[h]ave made a satisfactory

overall correctional facility adjustment and be seen as not likely to pose a threat

to the safety of the community." N.J.S.A. 10A:20-4.4(a)(1), (2), and (5).


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                                        5
     The inmate also must meet the specific eligibility criteria in N.J.A.C.

10A:20-4.5. The regulation provides that

           (a) In addition to the general eligibility criteria in
           N.J.A.C. 10A:20-4.4, candidates for [RCRPs] who
           have not been convicted of a sexual offense[,] as
           defined in N.J.S.A. 30:4-91.8[,] or an arson offense[,]
           and who do not demonstrate an undue risk to public
           safety shall be eligible [for a transfer to a RCRP,]
           within the time frames established in (b) below of:

                 ....

                 3. An actual parole eligibility date established by
           the New Jersey State Parole Board;

           (b) Candidates are eligible for participation in a
           residential community program when the candidate:

                 1. Is otherwise eligible and who has less than
           eighteen months remaining to be served and is
           determined by the Commissioner or designee to be
           appropriate for participation in a [RCRP].

                 ....

           [Ibid.]

     Here, the record shows that in October 2017, the ICC at SWSP approved

Adams's transfer to a RCRP.      However, the OCPOS thereafter denied the

application based on the nature and seriousness of his offense. In January or

February 2018, Adams submitted another application for admission to a RCRP.



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                                      6
The ICC at SWSP again approved the application, but the OCPOS thereafter

denied the application due to the nature of the offense.

      We note that there is sufficient evidence in the record to support a

determination that Adams is not eligible for a halfway-house placement due to

the nature and seriousness of the offense for which he is incarcerated. As stated

previously, Adams was convicted of conspiracy to commit murder. Adams's

presentence report (PSR) indicates that in 2006, he was a member of the Bloods

street gang. He met with other gang members and they decided to kill L.N.

      According to the PSR, L.N. also was a member of the Bloods. L.N.

apparently had reported to the police on something Adams and other gang

members had done. They agreed that Sammy Ling would shoot L.N. They

called L.N. and told her to meet them at a store. Ling shot L.N. as she was

walking home. She died as the result of a single gunshot wound to her head.

      However, as noted, it appears that in this matter, the OCPOS made the

final decision denying Adams's application for admission to a RCRP. It is not

clear, however, that the OCPOS has the authority under the NJDOC's regulations

to render a final decision on Adams's application.

      As previously noted, N.J.A.C. 10A:20-4.5(b)(1) states that if otherwise

eligible, an inmate may participate in a RCRP if the inmate has less than


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                                        7
eighteen months "remaining to be served" and the Commissioner or his designee

determines the inmate's transfer to a RCRP is appropriate. If the regulation

applies to an inmate who has to serve less than eighteen months before his

established parole eligibility date, the inmate's transfer would be subject to the

approval by the Commissioner or the Commissioner's designee.            There is,

however, no indication in the record before us that the Commissioner has

delegated that authority to the OCPOS.

      Moreover, N.J.A.C. 10A:20-1.4 states that the Commissioner or the

Commissioner's designee has authority under N.J.S.A. 30:4-91.2 to designate

the "place of confinement" for persons sentenced to serve sentences in State

institutions. The regulations do not, however, delegate authority to the OCPOS

to review and reverse a decision by an ICC regarding admission to an RCRP.

There also is no indication on this record that the Commissioner has delegated

authority to the OCPOS to make such decisions.

      Accordingly, we reverse the NJDOC's final decision and remand the

matter to the agency for reconsideration of Adams's application for a transfer to

a RCRP in accordance with the applicable regulations. The Commissioner may,

in his discretion, exercise the authority under N.J.S.A. 30:4-91.2 and determine

if Adams should be transferred to a RCRP. If the OCPOS makes the final


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                                         8
decision on Adams's application, it must cite the statutory or regulatory basis

for exercising that authority. If Adams is aggrieved by the NJDOC's decision,

he may file a new appeal.

      Reversed and remanded for reconsideration and issuance of a new final

decision in accordance with this opinion. We do not retain jurisdiction.




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