                                NOT FOR PUBLICATION WITHOUT THE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-4552-17T2

RONALD SMITH,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted September 19, 2019 – Decided November 4, 2019

                   Before Judges Suter and DeAlmeida.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Ronald Smith, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa Dutton Schaffer, Assistant
                   Attorney General, of counsel; Stephanie Renee Dugger,
                   Deputy Attorney General, on the brief).

PER CURIAM
      Ronald Smith appeals the final agency decision of the New Jersey

Department of Corrections (the DOC) that denied his request for a reduction in

custody status from gang minimum custody status to full minimum custody

status. We reverse and remand for consideration of applicable regulatory factors

and for the DOC to make appropriate findings and conclusions.

                                     I.

      Smith was convicted by a jury in March 2017 of the shooting death of

Bruce Miles, Jr. and sentenced in May 2017. He is an inmate at South Woods

State Prison (SWSP) where he is serving an aggregate eight-year term, subject

to an eighty-five percent period of parole ineligibility, for second degree

manslaughter committed in the heat of passion, N.J.S.A. 2C:11-4(b)(2), and

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). In January 2018, the

SWSP Institutional Classification Committee (ICC) 1 denied Smith's request to

reduce his custody classification status from gang minimum custody status 2 to


1
  The ICC is responsible to "[r]eview . . . inmate applications for change in
custody status . . . ." N.J.A.C. 10A:9-3.1(a)(3). It is comprised of the
administrator of the institution, director of education, social work supervisor,
correction major, supervising classification officer and other staff or designees.
N.J.A.C. 10A:9-3.2(a)(1) to (5).
2
  An inmate who is classified in gang minimum custody "may be assigned to
activities or jobs which routinely require them to move outside the security


                                                                          A-4552-17T2
                                          2
full minimum custody status. 3 The SWSP Associate Administrator and the DOC

Central Office Classification Committee (Central Office committee) upheld the

denial. Subsequently, Smith asked to "defer" this request in order to remain in

the "building trades program."

      The next month, Smith submitted another request for reduction to full

minimum custody status. The ICC approved this on February 27, 2018, but the

Associate Administrator denied Smith's request.          The reason given was:

"[c]ircumstances of present offense show extreme violence and a blatant

disregard for human life. After victim was down, Smith fired several more

shots." The Associate Administrator's decision was reviewed by the Central

Office committee, which agreed the denial was "appropriate [and] supported."

Although Smith filed an inmate grievance, the classification decision was not

changed.




perimeter of the correctional facility, but on the grounds of the facility and under
continuous supervision of a custody staff member, civilian instructor or other
employee authorized to supervise inmates." N.J.A.C. 10A:9-4.3(d).
3
  An inmate who is assigned to full minimum custody status can be assigned to
"1. Work details, jobs or programs outside the main correctional facility, (on or
off the grounds of the facility) with minimal supervision; and/or 2. A satellite
unit or minimum security unit." N.J.A.C. 10A:9-4.3(e).
                                                                            A-4552-17T2
                                         3
      Smith appealed.     At the DOC's request, we remanded the case on

November 14, 2018, for the DOC to "clarify and further explain" its decision

and retained jurisdiction.      Following the remand, SWSP's Associate

Administrator certified the procedures followed in this case conformed with the

DOC's "operational procedures." Specifically, the ICC's recommendation was

reviewed by the Administrator's designee, who "has the authority to review and

approve/disapprove any custody status recommended by the [ICC]."            That

"decision must be based on criteria articulated in the regulations and internal

management procedures, as well as any potential safety and security risks ."

Thereafter, any denial of full minimum custody by the Administrator's designee

is reviewed by the Central Office committee for approval or denial.

      The Associate Administrator explained the denial of Smith's request was

based on the "nature and circumstances" of the underlying offense. He had

relied on the pre-sentence investigative report. The underlying crime showed

"an extreme level of violence and a blatant disregard for human life."

            Smith arrived at a residence by car, exited his vehicle,
            walked up the driveway and moments later began to
            fight with the victim, a [twenty-eight]-year-old male.
            In progress at the residence was a graduation cookout
            for a pre-school child who was stated to be Smith's
            daughter. Smith punched the victim and they began
            fighting. Smith then walked away from the fight and
            proceeded to the trunk of his car where he retrieved a

                                                                         A-4552-17T2
                                       4
            handgun and proceeded back up the driveway toward
            the victim and began shooting. After Smith shot the
            victim several times (while the victim had his hands
            up), the victim began running up the driveway towards
            the garage but collapsed on the ground. Smith then
            proceeded to walk up to the victim while he was down
            on the ground, stand over him, and shoot him
            approximately four more times at point blank range.
            There were direct witnesses to the crime. Smith fled
            the scene and left the victim to die in front of those
            witnesses.

      After our remand, Smith's application was reviewed. The ICC again

recommended full minimum custody, but the Associate Administrator denied

Smith's request to reduce his custody status. He cited to the way the shooting

occurred, which showed a "blatant disregard for human life." The Central Office

committee approved the denial.

      In February 2019, the DOC "implement[ed] a rule exemption procedure

to make clear that the Administrator or designee has the authority to review and

approve/disapprove the ICC recommendations as to custody status, and that any

denials of [f]ull [m]inimum are reviewed and approved/disapproved by Central

Office [committee]."4    The Associate Administrator certified the review


4
  In In re N.J.A.C. 7:1B-1.1 et seq., 431 N.J. Super. 100, 124 (App. Div. 2013),
we observed that the waiver of a regulation must be accomplished through a
duly enacted regulation. Under DOC regulations, the "Commissioner may
exempt a correctional facility, community program or operational unit from


                                                                        A-4552-17T2
                                       5
procedures "are of benefit to the inmate and to society in general." He advised

that the DOC intended to commence rulemaking procedures to codify these

changes in the custody status regulations.

      On appeal, petitioner raises the following issues:

            POINT  1.    THE   DECISION  OF  THE
            ADMINISTRATOR'S DESIGNEE TO DENY MR.
            SMITH FULL-MINIMUM STATUS MUST BE
            REVERSED BECAUSE THE DECISION WAS
            ARBITRARY AND CAPRICIOUS[.]

            POINT 2. THE ADMINISTRATOR'S FAILURE TO
            ADDRESS THE MERITS OF MR. SMITH'S APPEAL
            RENDERS THE DECISION ARBITRARY AND
            CAPRICIOUS[.]

                                      II.

      Review of an administrative agency's final decision is limited. Kadonsky

v. Lee, 452 N.J. Super. 198, 201-02 (App. Div. 2017) (citing In re Stallworth,

208 N.J. 182, 194 (2011)). "We will not reverse an agency's judgment unless

we find the decision to be 'arbitrary, capricious, or unreasonable, or [] not

supported by substantial credible evidence in the record as a whole.'" Id. at 202

(quoting Stallworth, 208 N.J. at 194). We "'defer to the specialized or technical



adherence to a rule or may relax certain requirements of a rule for good cause
shown in a particular situation or in instances when strict compliance with a rule
or all of its requirements would result in . . . [a]n undue hardship, unfairness or
injustice." N.J.A.C. 10A:1-2.4(c).
                                                                           A-4552-17T2
                                            6
expertise of the agency charged with administration of a regulatory system. '"

K.K. v. Div. of Med. Assistance & Health Servs., 453 N.J. Super. 157, 160 (App.

Div. 2018) (quoting In re Virtua-West Jersey Hosp., 194 N.J. 413, 422 (2008)).

We have noted that the Legislature has provided for the broad exercise of the

DOC's discretion in all matters regarding the administration of a prison facility.

Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).

      The "[c]lassification of prisoners and the decision as to what privileges

they will receive rests solely within the discretion of the Commissioner of the

Department of Corrections." Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24,

30 (App. Div. 2001). An inmate has no liberty interest in a particular custody

level. See Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979). However,

the DOC's decision to deny reduced custody status must not be arbitrary,

capricious or unreasonable, or unsupported by credible evidence in the record.

Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); White v. Fauver,

219 N.J. Super. 170, 180 (App. Div. 1987), modified sub. nom., Jenkins v.

Fauver, 108 N.J. 239, 247 (1987).

      Under the DOC regulations, "[c]hanges in inmate custody status within a

particular correctional facility shall be made by the [ICC]." N.J.A.C. 10A:9-

4.4(a). The ICC applies criteria set forth in the regulations and the "objective


                                                                          A-4552-17T2
                                        7
classification instrument score . . . to determine whether an inmate is eligible

for reduced custody consideration." N.J.A.C. 10A:9-4.1(b).

      In considering whether to reduce an inmate's custody status, the ICC "shall

take into consideration all relevant factors." N.J.A.C. 10A:9-4.5(a)(1) to (9).

The regulation lists nine factors that must be considered, but the ICC is not

limited to consideration of those nine factors. Ibid. The ICC is not compelled

by these regulatory criteria to reduce an inmate's custody status.       N.J.A.C.

10A:9-4.5(c).

      Relevant here, if an inmate has been granted a reduced custody status, the

inmate's custody status may be increased for five enumerated reasons "subject

to confirmation by the I.C.C." N.J.A.C. 10A:9-4.5(e). These include:

            1. On recommendation of the Disciplinary Hearing
            Officer in connection with disciplinary actions;

            2. Upon receipt of a non-permissible detainer;

            3. Upon receipt of credible, reliable information from
            official authorities or informants, that the inmate may
            be an escape risk;

            4. Failure of the inmate to adjust to the social or
            programmatic needs of the reduced custody unit; and/or

            5.   Any reason which, in the opinion of the
            Administrator and I.C.C., relates to the best interests of
            the inmate or the safe, orderly operation of the


                                                                          A-4552-17T2
                                        8
            correctional facility or the safety of the community or
            public at large.

            [N.J.A.C. 10A:9-4.5(e)(1) to (5).]

Thus, under the regulations, an inmate's custody status may be increased for the

safety of the community "in the opinion of the Administrator and I.C.C."

      In Smith, 346 N.J. Super. at 27, the inmate was transferred from one

institution to another because of a "keep separate" order in his file. He had been

classified at full minimum custody status before his transfer, but at the new

institution, the ICC placed him in gang minimum custody status. Id. at 28. The

administrator of the facility reviewed the ICC's determination, concluding that

the inmate did not qualify for full minimum custody status. Ibid. We affirmed

the decision but clarified that the administrator and the ICC must take into

consideration all of the factors regarding petitioner's status in making its

classification decision. Id. at 32. "Neither the nature of an inmate's conviction,

except for those offenses specifically excluded for eligibility in N.J.A.C. 10A:9 –

4.8, nor the location of a correctional facility within a residential area alone,

may permanently disqualify an inmate from consideration for 'full minimum

custody status.'" Ibid.

      In this case, the administrator's decision to deny full minimum was based

on the nature and manner the crime was committed. There are a number of

                                                                           A-4552-17T2
                                        9
factors under the regulations that the ICC must consider in its classification

decision. N.J.A.C. 10A:9-4.5(a) requires the ICC to consider the field account

of the present offense, prior criminal record, previous incarcerations,

correctional facility adjustment, residential community program adjustment, the

objective classification score, reports from professional and custody staff,

whether the conviction resulted in a life sentence and "[a]ny reason which, in

the opinion of the Administrator and the [ICC] relates to the best interests of the

inmate or the safe, orderly operation of the correction facility or the safety of

the community or public at large." The Administrator should consider these

same factors, as well as the information before the ICC, the inmate's record

while in prison, and the factors in N.J.A.C. 10A:9-4.5(e) to make appropriate

findings that are consistent with the regulations. We cannot exercise deference

to the agency's decision unless we have "confidence that there has been a careful

consideration of the facts in issue and appropriate findings addressing the

critical issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App.

Div. 2001).

      In light of the factors to be considered under the regulations, we cannot

discern that the Associate Administrator or the Central Office committee

considered all of the information. We are constrained, therefore, to reverse and


                                                                           A-4552-17T2
                                       10
remand for full consideration of the factors set forth in the DOC classification

regulations and to make appropriate findings and conclusions based on those

regulatory factors. See N.J.A.C. 10A:9-4.5(e)(1) to (5). As in Smith, the nature

of an inmate's conviction may not permanently disqualify him from

consideration of full minimum status. 346 N.J. Super. at 32.

      We do not agree with Smith's argument that N.J.A.C. 10A:9-4.4(a)

applies. That regulation provides that "[i]n an emergency situation, or when

additional information is received which negatively affects an inmate's

suitability to remain in reduced custody, the inmate's custody level may be

increased by order of the Administrator, Associate Administrator, Assistant

Superintendent, or Correction Major. " N.J.A.C. 10A:9-4.4(a)(1). If that occurs,

the custody level change, "must be reviewed and approved by the [ICC] as soon

as is reasonably feasible." N.J.A.C. 10A:9-4.4(a)(2). This case did not involve

an emergency nor did the Associate Administrator indicate there was additional

information. His decision was based on the circumstances of the offense .

      The DOC acknowledges—and we agree—that the classification review

procedures utilized by the Administrator and the Central Office committee

require rulemaking. See Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313,

330 (1984). Our remand, therefore, includes direction to the DOC to promulgate


                                                                        A-4552-17T2
                                      11
rules in the next 120 days to codify the procedures and standards used in their

review of classification decisions.

      Although we have reversed and remanded, our decision expressly does not

change Smith's custody status from that determined by the Associate

Administrator. Also, we are not issuing an advisory opinion on the scope or

content of the regulations DOC will promulgate.

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




                                                                       A-4552-17T2
                                      12
