                                NOT FOR PUBLICATION WITHOUT THE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-1241-17T1

JUSTICE R. ALLAH,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                    Submitted February 3, 2020 – Decided March 12, 2020

                    Before Judges Sabatino, Geiger and Natali.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Justice R. Allah, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Marvin L. Freeman, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Appellant Justice Rasideen Allah is incarcerated at the New Jersey State

Prison in Trenton and is serving a life sentence for murder, with a thirty-year

period of parole ineligibility.     He appeals from a May 30, 2017 final

determination of the Department of Corrections ("Department"), issued after we

remanded the matter for a series of rehearings, that placed him in the

Management Control Unit (MCU). 1 We affirm in part, and remand in part.

                                         I.

      We briefly discuss the procedural and factual history of appellant 's initial

placement in the MCU, and subsequent appeals, to provide context for our

opinion.

      On November 20, 2006, pursuant to N.J.A.C. 10A:5-2.6(b),2 the

Department provided appellant with what is known as a "criteria record sheet"



1
  The MCU is "a close custody unit to which an inmate may be assigned if the
inmate poses a substantial threat to the safety of others; of damage to or
destruction of property; or of interrupting the operation of a State correctional
facility." N.J.A.C. 10A:5-1.3; see also N.J.A.C. 10A:5-2.5(a).
2
  At the time of the initial hearing, N.J.A.C. 10A:5-2.6(b) provided that a criteria
record sheet shall "[d]elineate the criteria, which will be utilized in determining
the inmate's suitability for the [MCU]"; "[p]rovide an outline of the major
factors in the particular inmate's case history"; "[c]ontain concise statements of
the factual basis, not merely conclusions, on which the recommendation of
[MCU] placement is based"; and "[n]ot contain information deemed
confidential." That language was removed, effective October 5, 2015.
                                                                            A-1241-17T1
                                         2
giving him written notice to appear before the Department's Management

Control Unit Review Committee ("MCURC" or "Committee") to determine

whether it was appropriate to place him in the MCU. On that criteria record

sheet, the Department maintained: 1) appellant was serving a maximum term of

life and a minimum term of thirty years for murder; 2) institutional records

showed that he had a "substantial disciplinary record" with thirty-one

disciplinary   infractions    including   encouraging   group   demonstrations,

possession of Security Threat Group (STG) materials, fighting, assault,

disruptive conduct, and use of narcotics; and 3) recent charges included

"attempting to obtain a cellular telephone(s), attempting to engage in conduct

that disrupts institutional security, attempting to give and/or obtain money from

the family of another inmate, attempting to perpetuate a fraud, and unauthorized

use of the mail or telephone" for which appellant received a total of 820 days of

administrative segregation.

      The Committee conducted appellant's initial MCU hearing on January 25,

2007. A January 11, 2007 memorandum from Donald Mee, Jr., then Assistant

Superintendent, identified the following documents considered by the

Committee at that hearing: 1) a memo dated January 11, 2007; 2) minutes from

a January 10, 2007 meeting; 3) minutes from a January 25, 2007 meeting; 4) a


                                                                         A-1241-17T1
                                          3
review of confidential information dated January 19, 2007; 5) a December 19,

2006 report by Flora DeFilippo, Ph.D.; and (6) appellant's submissions dated

December 14, 2006, and January 24, 2007.

     In the aforementioned January 19, 2007 review of confidential

information, Mee concluded:

           It is clear from this investigation that [appellant]
           established an extremely elaborate scheme to include
           his family, among others, to introduce a variety of
           contraband to include weapons inside the security
           perimeter of New Jersey State Prison. This plan also
           included a process to circumvent the institutional remit
           and mail process as well as the secured inmate
           telephone system.

     Following the hearing, the Committee directed that appellant be placed in

the MCU. In support of its decision, the Committee found:

           The information that has been provided to the MCURC
           depicts an extremely elaborate sophisticated system
           that was developed by [appellant] that circumvented
           institutional safeguards with respect to financial
           transactions as well as the mail and telephone systems.
           The scheme effectively laundered money that was
           utilized to introduce a variety of contraband into the
           security perimeter of New Jersey State Prison.

           What is of serious concern to the MCURC is the extent
           and complexity of the system developed by [appellant]
           . . . . This activity poses a threat to the safety and
           security of the New Jersey State Prison. This illegal
           contraband creates a fierce competition between the
           inmate population.

                                                                      A-1241-17T1
                                      4
      After an unsuccessful administrative appeal, appellant appealed to us, and

we affirmed in a per curiam opinion. See Allah v. N.J. Dep't of Corr., No. A-

4422-06 (App. Div. Jun. 3, 2008). On September 9, 2008, the Supreme Court

denied certification. Allah v. N.J. Dep't of Corr., 196 N.J. 463 (2008).

      Since petitioner's initial placement, the Committee has conducted both

annual and routine reviews. Following each hearing, the Committee determined

it was appropriate to maintain appellant's placement in the MCU. Petitioner

challenged a February 24, 2011 final determination of the Department

continuing his placement in the MCU. We affirmed that determination, again

noting there was substantial, credible evidence in the record to support the

agency's decision. See Allah v. N.J. Dep't of Corr., No. A-3837-10 (App. Div.

June 21, 2012). The Supreme Court denied certification. Allah v. Dep't of Corr.,

213 N.J. 538 (2013).

      In a September 12, 2016 unpublished decision, we addressed petitioner's

appeal of six final determinations of the Department that challenged additional

routine and annual reviews conducted by the Committee between June 2012 and

January 2014 that affirmed his continued placement in the MCU. See Allah v.

New Jersey Dep't of Corr., No. A-0330-12 (App. Div. Sept. 12, 2016). We

concluded that the Department acted arbitrarily, capriciously, and unreasonably


                                                                           A-1241-17T1
                                       5
when it placed appellant in the MCU because it had come to light that all three

members of the Committee had not reviewed relevant information prior to their

vote as required by N.J.A.C. 10A:5-2.4(a). We also determined, however, that

because there was "substantial evidence that petitioner's placement in the MCU

was warranted," it would be inappropriate to summarily release appellant from

the MCU.3 Instead, we remanded the matter to the Department with clear

instructions:

            that the initial placement hearing be repeated. The
            entire [C]ommittee shall consider all of the evidence
            that was before the [C]ommittee at the initial hearing in
            2007, and all members of the [C]ommittee shall vote
            upon whether or not petitioner shall be placed into the
            MCU. No new facts may be introduced at the hearing;
            only that evidence that was placed before the
            [C]ommittee at the initial hearing in 2007 may be
            considered.

      We further instructed that the "composition of the [C]ommittee shall be

that as the law required at the time of the initial hearing" and that new members,



3
   We acknowledged in a footnote in our September 12, 2016 opinion that
appellant had been released into the general population on or about March 18,
2016. We nevertheless noted that since the State did not argue or indicate that
the issues raised in that appeal were moot, we would issue the opinion as
scheduled. In his merits brief on this appeal, appellant maintains that the issues
under review are not moot because the Committee's determination may have an
effect on future parole hearings, a position the State does not challenge.


                                                                          A-1241-17T1
                                        6
if needed, shall be chosen in compliance with N.J.A.C. 10A:5-2.2(a) as it existed

in 2007.

      We also directed the Department to rehear any review hearing occurring

before June 5, 2009 that concerned appellant and in which one Committee

member, Dr. DeFilippo, participated under the same terms as described above. 4

As to the six hearings being challenged on appeal, the court found that there was

"no evidence that any of those hearings suffered from the same infirmities as did

the initial hearing" and, accordingly, we affirmed those Department final

decisions.

      Despite our instruction in September 2016 that the Department conduct

the remanded rehearings within forty-five days, the remanded proceedings did


4
   At a June 5, 2009 deposition in an unrelated federal case, Dr. DeFilippo
testified that she was unaware she had served as a member of the Committee and
believed she had been merely "attending" the review hearings as the
Department's "mental health representative." Dr. DeFilippo admitted she never:
evaluated any evidence placed before the Committee concerning an inmate; had
never made any recommendations about whether an inmate should be placed or
should continue to be placed in the MCU; had never voted on or observed other
Committee members vote on whether to release an inmate from or continue an
inmate in the MCU; was unaware of the standards for admitting an inmate into
the MCU; and did not have "any idea" about the process the MCURC used to
reach a decision. Dr. DeFilippo had only "a general idea" of what routine and
annual review hearings were about and was not familiar with those sections of
the New Jersey Administrative Code addressing Management Control Units.



                                                                         A-1241-17T1
                                       7
not commence until May 8, 2017. Listed attendees at the proceeding included

David Richards, Assistant Superintendent-Chairperson; Lieutenant Clermont, 5

Custody Supervisor; Rakima Stokes-Little, Education Department; and Crystal

Raupp, Social Work Supervisor-Recorder, all new members as none of the

original Committee members that participated in the 2007 decision were

available. Appellant did not request the assistance of counsel substitute.

      A decision was issued the same day and the Committee found that

appellant "pose[d] a substantial threat to the safety of others and the secure

operation of the facility if [he was] housed in the general population." The

decision noted that the Committee only considered evidence that was before it

at the initial hearing on January 25, 2007, and that the Committee membership

was consistent with the requirements of N.J.S.A. 10A:5-2.2 at the time of the

initial proceedings.

      Appellant filed an administrative appeal which Raymond Royce,

Associate Administrator, denied on May 30, 2017. Associate Administrator

Royce concluded that: 1) there "was compliance with N.J.A.C. 10A:5-2.2

through N.J.A.C. 10A:5-2.8 as it existed in January 2007 and in accordance with



5
   Intending no disrespect, we identify Lieutenant Clermont by his title and
surname as his first name was not provided in the record.
                                                                         A-1241-17T1
                                       8
the court's decision dated September 12, 2016 as [appellant was] afforded a

meaningful rehearing and the opportunity to present evidence as it existed at the

time of [his] initial hearing"; 2) "the decision of the MCU Chairperson to

confirm [appellant's] initial placement in the MCU was based on substantial

evidence that was available to [the] [C]ommittee at the time of [appellant's]

initial placement"; 3) and "the decision was appropriate based on [appellant's]

case at the time of [his] initial placement in the MCU."

      On appeal, appellant argues that the decision to again place him in the

MCU was arbitrary, capricious, and unreasonable because: 1) the Department

allowed parties to serve on the MCU who were "ineligible" to do so in 2007; 2)

the Committee relied on the criteria record sheet in the initial and all subsequent

placement hearings that contained inaccurate information; and 3) the Committee

again relied on a March 1, 2007 Special Investigation Division report submitted

after his initial placement despite our mandate to use only what was available at

the time of the initial hearing.

                                        II.

      "An appellate court ordinarily will reverse the decision of an

administrative agency only when the agency's decision is 'arbitrary, capricious

or unreasonable or . . . is not supported by substantial credible evidence in the


                                                                           A-1241-17T1
                                        9
record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App.

Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of

statutes and regulations within its implementing and enforcing responsibility is

ordinarily entitled to . . . deference.'" Wnuck v. N.J. Div. of Motor Vehicles,

337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive

Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). The Legislature has

provided for the broad exercise of the Department'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).

                                       III.

      In his first point on appeal, appellant contends that the Committee's

decision is invalid because the members who conducted the rehearing were

ineligible to serve as Committee members in 2007. We disagree.

      N.J.A.C. 10A:5-2.2, as it existed in 2007, required that the Committee be

composed of the Associate Administrator or Assistant Superintendent, a

representative from the Education or Social Services Department, and the person

designated as the Supervisor of the MCU. When we remanded the matter, we

noted that if the original Committee members were not available, new members


                                                                          A-1241-17T1
                                       10
shall be chosen as replacements in compliance with N.J.A.C. 10A:5-2.2 as it

existed in 2007. Here, the Committee noted that "[t]here were no remaining

members of the original [C]ommittee available therefore, new members were

assigned to the [C]ommittee in compliance with the regulation as it existed in

January 2007."

      The   Committee,     which     consisted   of   Richards,     the   Assistant

Superintendent,   Clermont,    the    Custody    Supervisor,      Stokes-Little,    a

representative from the Education Department, and Raupp, a Social Work

Supervisor, satisfied the regulatory requirements. Appellant's argument that the

rehearing could only have been conducted with individuals who held the

appropriate titles back in 2007 has no support in the relevant statute or

regulations and is contrary to our instruction for the Department to choose new

members as necessary.

                                      IV.

      In his second argument, appellant maintains that the May 30, 2017 final

decision should be reversed because the Committee considered the criteria

record sheet which contained "inaccurate information." We disagree, as the

record establishes the Committee did not rely on any inaccuracies contained in

the criteria record sheet when it rendered its decision on remand.


                                                                            A-1241-17T1
                                       11
      Indeed, during the rehearing, appellant raised the issue of inaccuracies

listed in the criteria record sheet and specifically that he was adjudicated not

guilty of the charges of "attempting to perpetrate a fraud, give or taking money

from another, and involved in criminal activities." The Chairman responded that

if there were any such charges, the Committee would not rely upon them when

resolving the matter and any inaccuracies would be noted in the Committee's

decision.

      As represented to appellant, the Committee in its decision acknowledged

that appellant "was notified that if the original criteria record sheet had any

inaccurate disciplinary decisions they would be noted and not used in the

[C]ommittee's decision." It also specifically stated that the charges of fraud and

attempting to give or receive money were dismissed and were not relied upon

by the Committee. The Committee noted, however, that appellant's extensive

disciplinary record contained "numerous" other infractions, including the

serious charges from 2006 involving the development of a "sophisticated system

that was designed to circumvent institutional safeguards concerning

contraband," namely cellular phones. We are satisfied based on our review of

the administrative record that the Committee did not rely on inaccurate

information in the criteria record sheet.


                                                                          A-1241-17T1
                                       12
                                      V.

      Next, appellant argues that the Department's final decision was arbitrary

and capricious because the Committee relied upon a March 1, 2007 report, which

post-dated the Committee's initial January 2007 decision. Again, the record

simply does not support appellant's claims.

      To determine whether an inmate must be assigned to the MCU, the

Committee considers the following criteria specified by regulation:

            1. Disciplinary records during the inmate's present
               term of confinement and any previous terms served.
               Weight shall be assigned to this criterion where
               there are a substantial number of minor charges, or
               one or more charges of a serious nature;

            2. Past criminal offenses, including those for which
               incarcerated, which indicate the capability and
               propensity to commit or precipitate serious acts of
               disruption or violence;

            3. Number         and    location       of     previous
               institutionalizations including the disciplinary
               records, progress reports, classification reports, or
               any other records which indicate involvement in
               serious misbehavior;

            4. Reports by professional staff (for example,
               psychologists, social workers, psychiatrists);

            5. Reports indicating present involvement in criminal
               activities in the community or within the
               correctional facility;


                                                                       A-1241-17T1
                                      13
             6. Evidence of an attitude which indicates an
                unwillingness to follow rules and obey orders;

             7. Inability to maintain a satisfactory work record as
                indicated in reports by work supervisors and/or
                frequency of job changes;

             8. Information indicating unsatisfactory adjustment to,
                or performance in, treatment or rehabilitative
                programs; and

             9. Evidence of the inmate's inability or unwillingness
                to house with other inmates in a nondisruptive and
                nondestructive manner.

             [N.J.A.C. 10A:5-2.4(a).]

       At the time of appellant's initial 2007 hearing, N.J.A.C. 10A:5-2.10(a)

required that an inmate's placement into the MCU be reviewed at a formal

review hearing at least every three months. 6 During that hearing, the Committee

was required to review the information upon which the decision was based to

place the inmate into the unit, as well as reports of his conduct while in the unit.

See N.J.A.C. 10A:5-2.10(e). The Committee was not permitted to release an

inmate from an MCU until he ceased being a substantial threat to the safety of

others, property, and to the orderly operation of the prison. See N.J.A.C. 10A:5-

2.10(f).


6
    N.J.A.C. 10A:5-2.10 has since been modified, effective October 5, 2015.


                                                                            A-1241-17T1
                                        14
       An inmate's placement in the MCU also had to be reviewed annually to

determine whether his release from the unit was appropriate. See N.J.A.C.

10A:5-2.11(a).7 At the annual review hearing, the inmate had the initial burden

of demonstrating he had participated in the requisite jobs, and educational and

recreational programs; complied with any criteria mandated by the MCURC;

had not committed any "asterisk" acts8; and "[a]greed to reaffirm the obligation

to adhere to the rules and regulations for inmate behavior." N.J.A.C. 10A:5-

2.11(b).

       During the rehearing, the Chairman specifically noted several times that

the Committee would not consider reports submitted after January 2007. And,

in its final decision, the Committee stated that it "only considered . . . the

evidence that was before the Committee at the initial hearing of January 25,

2007."     As the Committee noted, its decision was based on appellant's

disciplinary history which included a finding that he attempted to obtain a

cellular phone and engage in conduct which disrupts the orderly running of the

institution and unauthorized use of the mail or telephone, his criminal offense



7
    N.J.A.C. 10A:5-2.11 was repealed, effective October 5, 2015.
8
  Prohibited disciplinary acts preceded by an asterisk "are considered the most
serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1, -5.1.
                                                                        A-1241-17T1
                                      15
of murder "which indicates the capability and propensity to commit or

precipitate serious acts of disruption or violence," and the November 8, 2006

confidential Special Investigation Division report that Mee detailed in his

January 19, 2007 review of confidential information suggesting that appellant

was "involved in the criminal activity of developing a sophisticated system that

was designed to circumvent institutional safeguards concerning contraband."

       Thus, the Committee's decision to assign appellant to the MCU was not

arbitrary or capricious. Its determination was supported by credible evidence in

the record as of the January 25, 2007 hearing that demonstrated appellant posed

a substantial threat to the safety of others and posed a substantial threat of

interrupting the operation of a State correctional facility. See N.J.A.C. 10A:5-

2.5.

                                      VI.

       Appellant also argues that the Committee denied him a copy of the 2007

Administrative Code, and improperly precluded him from confronting the

former Acting Administrator and a Special Investigations Division member at

the rehearing. These contentions are without merit. 9


9
  We note that appellant raised his confrontation argument for the first time in
his reply brief and only mentioned the Department's purported failure to provide


                                                                        A-1241-17T1
                                      16
      As to appellant's argument that he was denied a copy of the Administrative

Code, Associate Administrator Royce found that "[t]here [was] no mention nor

reflection in the official record of [appellant] being denied a request for a copy




him with the Administrative Code in his factual statement in his merits brief
without accompanying legal argument. Procedurally, raising a substantive issue
for the first time in a reply brief is not permitted. See State v. Smith, 55 N.J.
476, 488 (1970); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J.
Super. 590, 596 (App. Div. 2001). We are also aware that appellant received a
copy of the entire section of the Administrative Code pertaining to the MCU in
the Department's appendix on appeal. We also granted his motion to file a
supplemental letter citing to those specific sections of the Administrative Code
he referred to in his appellate briefs. Appellant contended in his supplemental
letter that he was not properly provided all documents required by N.J.A.C.
10A:5-2.6(b)(1) to (4) prior to his initial hearing, the forms used by the
Committee during the rehearing were not the same as those used in the initial
hearing in accordance with N.J.A.C. 10A:5-2.3 and N.J.A.C. 2.6(r) and (s), the
Committee members chosen for the rehearing were precluded from participating
pursuant to N.J.A.C.10A:5-2.2(a), and the Department violated N.J.A.C. 10A:5-
2.6(b)(3) when it conceded that his criteria record sheet contained incorrect
information. As to the argument that he was not provided all documents
required by the regulation, we noted that the Department provided appellant with
a comprehensive and compliant criteria record sheet that indicated appellant
posed a threat to the safety and security of the prison. With respect to the use
of different forms, our review of the record similarly indicated that the
Committee properly relied on the substantial credible evidence in the record to
determine that appellant's placement in the MCU was warranted. Also, as
discussed, all new members chosen for the Committee rehearing satisfied the
regulatory requirements as they existed in 2007. Finally, we again disagree with
appellant's final argument as the record establishes the Committee did not rely
on any incorrect information contained in the criteria record sheet when it
rendered its decision. Thus, we find no legal or factual support for appellant's
supplemental regulatory arguments.


                                                                          A-1241-17T1
                                       17
of [Section] 10A [of the Administrative Code]." Royce further found that

appellant was "offered the assistance of [l]aw [l]ibrary [c]lerks to provide legal

reference materials, services[,] and supplies[,] as well as to act as a counsel

substitute to assist in the adequate collection and presentation of facts to which

[he] declined." Regarding the confrontation of witnesses, Royce also found that

"there were no witnesses who testified during [appellant's] initial MCU

placement hearing in 2007" and that "[n]ew witnesses [at the rehearing] would

constitute new evidence that was not available at [appellant's] initial MCU

placement hearing," in accordance with our remand instructions. We see no

reason to disturb those findings of the Department.

                                      VII.

      We accordingly affirm the Department's final decision placing appellant

in the MCU as there was substantial credible evidence in the record supporting

its decision.   We must remand the matter again, however, because the

Department failed to comply with that portion of our remand to rehear any

proceedings beyond the initial placement hearing in which Dr. DeFilippo

participated but failed to review evidence or vote.

      We specifically instructed the Department to repeat all of appellant's

routine and annual reviews by the Committee in which Dr. DeFilippo


                                                                          A-1241-17T1
                                       18
participated between the time of appellant's initial placement in the MCU and

her June 5, 2009 deposition, which include reviews conducted on May 18, 2007,

July 2, 2007, October 10, 2007, January 8, 2008, March 27, 2008, June 26, 2008,

October 2, 2008, December 30, 2008, and March 30, 2009. Those rehearings

are to be conducted and completed within ninety days.

      To the extent we have not specifically addressed any of appellant's

remaining arguments, it is because we conclude they lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E).

      Affirmed in part and remanded in part. We do not retain jurisdiction.




                                                                       A-1241-17T1
                                      19
