                                NOT FOR PUBLICATION WITHOUT THE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-1381-16T2

CLIFFORD J. GRAF,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
______________________________

                    Submitted January 16, 2019 - Decided February 20, 2020

                    Before Judges Fuentes and Accurso.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Clifford J. Graf, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Kevin J. Dronson,
                    Deputy Attorney General, on the brief).

          The opinion of the court was delivered by

FUENTES, P.J.A.D.
      Appellant Clifford J. Graf is an inmate at South Woods State Prison. He

appeals from the decision of the Department of Corrections (DOC) denying his

application to be reclassified and placed in "full minimum status." After

reviewing the record before us and mindful of the relevant standard of review,

we affirm.

      On February 3, 1986, a jury convicted appellant of murder, N.J.S.A.

2C:11-3a and N.J.S.A. 2C:11-3a(2), by shooting the victim four times in the

head with a .22 caliber handgun; and third degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5b. The court sentenced appellant to an aggregate

term of life imprisonment with thirty-two years of parole ineligibility. 1

Appellant was twenty-two years old at the time he committed these crimes. He

will be fifty-seven years old in April 2020.

      On June 28, 2016, the Institutional Classification Committee (ICC)

reviewed and denied appellant's request for a change in status. In reaching this

decision, the ICC noted that "[d]enial is appropriate & supported by Central

Office 7/26/16. . . . Extreme Level of Violence Used in the Commission of the


1
  Although defendant was also convicted of first degree felony murder, N.J.S.A.
2C:11-3a(3), first degree armed robbery, N.J.S.A. 2C:15-1, second degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and third
degree theft, N.J.S.A. 2C:20-3, these offenses merged at the time of sentencing
as reflected in the Judgement of Conviction.
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                                        2
Offense & Resulted in a Life Sentence."          After he exhausted the DOC's

administrative review process, appellant sought judicial review of this decision

in this court.

      N.J.A.C. 10A:9-4.5(b) provides:

             When considering inmates whose present offense or
             past history involves arson, escape, assault, murder or
             sexual offenses, or who have been known to have
             psychological problems, the I.C.C. shall utilize
             psychiatric or psychological evaluations which are not
             more than six months old and which address suitability
             for reduced custody status.

             [(Emphasis added).]

Appellant's psychological evaluation did not reveal he suffers from any mental

health problems.

      Here, the ICC's decision was guided by the regulatory standards adopted

by the DOC.      These regulations recognize five different classifications of

"custody status" for inmates:

             (a) Inmates classified as "close custody status" shall be
             assigned to selected activities such as work and
             recreation within the confines of the unit under
             continuous supervision.

             (b) Inmates classified as "maximum custody status"
             shall be assigned to activities within the confines of the
             correctional facility under continuous supervision.



                                                                          A-1381-16T2
                                         3
            (c) Inmates classified as "medium custody status" shall
            be assigned to activities inside the security perimeter of
            the correctional facility under frequent and direct
            observation of staff.

            (d) Inmates classified as "gang minimum custody
            status" may be assigned to activities or jobs which
            routinely require them to move outside the security
            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. The time served in gang minimum custody
            status shall be at the discretion of the Institutional
            Classification Committee (I.C.C.).

            (e) Inmates classified as "full minimum custody status"
            are those 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.]

Appellant is classified as a "gang minimum custody status" under section (d).

He sought a reclassification to "full minimum custody status" under section (e) .

      N.J.A.C. 10A:9-2.6 defines the "Objective criteria for the Reclassification

Instrument for Male Inmates." N.J.A.C. 10A:9-2.6(a) describes the total number

of points necessary to support a recommendation to reclassify the status of an

inmate. N.J.A.C. 10A:9-2.6(b)(1)(i) considers "homicide" the most serious

                                                                         A-1381-16T2
                                        4
offense under the Severity of Offense Scale in N.J.A.C. 10A:9-2.8 and imposes

"six points" to inmates convicted of this crime. Furthermore, only inmates with

a "score of four points or less shall indicate a recommendation for placement

into minimum custody status." N.J.A.C. 10A:9-2.6(a)(3). Thus, based on this

regulatory scheme, there is a presumption that appellant is not a suitable

candidate for a reduced custody status.

        It is long-settled that a reduced custody status "is a privilege and not a

right." N.J.A.C. 10A:9-4.2. See also Smith v. N.J. Dep't of Corr., 346 N.J.

Super. 24, 30 (App. Div. 2001).      In Smith, this court held that "[n]either the

nature of an inmate's conviction, except for those offenses specifically excluded

for eligibility in N.J.A.C. 10A:9-4.8,2 nor the location of a correctional facility

within a residential area alone, may permanently disqualify an inmate from

consideration for 'full minimum custody status.'" Id. at 32. However, there is

no indication that the DOC considers appellant permanently ineligible for a

reduction in custodial status based only on his murder conviction.

        This court's review of final decisions by a state administrative agency is

limited. In re Carter, 191 N.J. 474, 482 (2007). We will uphold such a decision

absent "'a clear showing that it is arbitrary, capricious, or unreasonable, or that


2
    Appellant was not convicted of any offenses listed in N.J.A.C. 10A:9-4.8.
                                                                           A-1381-16T2
                                          5
it lacks fair support in the record.'" Hemsey v. Bd. of Trs., Police & Firemen

Ret. Sys., 198 N.J. 215, 223-24 (2009) (quoting In re Herrmann, 192 N.J. 19,

27-28 (2007)). Accordingly, "our scope of review is guided by three major

inquiries: (1) whether the agency's decision conforms with relevant law; (2)

whether the decision is supported by substantial credible evidence in the record;

and (3) whether, in applying the law to the facts, the administrative agency

clearly erred in reaching its conclusion."    Twp. Pharmacy v. Div. of Med.

Assistance & Health Servs., 432 N.J. Super. 273, 283-84 (App. Div. 2013).

      With these settled principles as our guide, we conclude the DOC's decision

to deny appellant's reclassification status was not arbitrary nor capricious. The

ICC applied the factors codified in a regulatory scheme that take into account

the inherent risks associated with the operation of a penal institution. It is not

our role as an intermediate appellate court to micro-manage the prison nor

substitute our judgment for the judgment of those who are charged with this

responsibility.

      Affirmed.




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