                                NOT FOR PUBLICATION WITHOUT THE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-1962-18T4

LEROY MOORE,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                   Submitted February 3, 2020 – Decided March 2, 2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Leroy Moore, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Christopher C. Josephson, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Inmate Leroy Moore appeals from the decision of the Department of

Corrections Office of Community Programs (OCP) denying his release to a

Residential Community Release Program (RCRP), colloquially known as a half-

way house.      He contends the decision was arbitrary, capricious, and

unreasonable,    because    the   decision-makers     relied,   without   adequate

explanation, on his criminal history. As the Department failed to clearly state

the reasons for its decision, or to show it weighed the factors its own regulations

prescribe, we remand for reconsideration.

      Moore has been incarcerated continuously since June 2014. He was

convicted of multiple drug offenses that he committed in 2009, and bail jumping

committed in 2010. His aggregate term of seventeen years, of which eight had

to be served before parole eligibility, includes a nine-year-term for his most

serious drug offense, and an eight-year-term for bail jumping. With the benefit

of jail credits, he became eligible for parole in late 2019, but remains in custody.

Moore has an extensive prior record of juvenile adjudications and adult

convictions. The latter include convictions for escape, drugs, theft, resisting

arrest and obstruction of justice. He is now forty-two years old.

      The Institutional Classification Committee (ICC) approved Moore for full

minimum status in February 2018. That satisfied a prerequisite for assignment


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                                         2
to an RCRP. See N.J.A.C. 10A:9-4.3(f) (stating that "[f]ull minimum custody

status" is a prerequisite for "community custody status," which is required for

assignment to an RCRP); N.J.A.C. 10A:20-4.4(a)(1) (stating that candidates for

an RCRP generally must be classified as full minimum). The ICC thereafter

approved Moore's application for an RCRP. The administrator of the prison

where he was housed approved it as well. However, in September 2018, the

OCP denied Moore's application – as it had done twice previously in 2018. The

OCP explained, "A review of your program participation, classification file, and

the nature and details of [your] offense have resulted in this denial." Below that

statement appeared the words "CRIMINAL HISTORY."

      Moore appeals from that last denial. Moore argues that reference to his

criminal history defies meaningful review because every inmate has one. He

contends his criminal history, while extensive, does not reflect a propensity for

violence, except a juvenile adjudication when he was thirteen years old. The

Department defends its decision, noting that Moore had no liberty interest in

community placement, and that his adult record of eight Superior Court

convictions, and fourteen municipal court convictions, justified denial.

      Applying our well-settled standard of review, we will disturb the

Department's decision only if it is "arbitrary, capricious or unreasonable," or is


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                                        3
unsupported "by substantial credible evidence in the record as a whole." Henry

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

      We recognize the Commissioner has "complete discretion" to determine

an inmate's placement and custody status. Smith v. N.J. Dep't of Corr., 346 N.J.

Super. 24, 29 (App. Div. 2001) (citing N.J.S.A. 30:4-91.2). Nonetheless, we

will find an abuse of discretion "when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779

F.2d 1260, 1265 (7th Cir. 1985)). "[I]t is a fundamental of fair play that an

administrative judgment express a reasoned conclusion . . . [which] requires

evidence to support it and findings of appropriate definiteness to express it."

N.J. Bell Tel. Co. v. Commc'ns Workers of Am., 5 N.J. 354, 375 (1950) (internal

citation omitted).

      Meaningful judicial review depends on the agency providing a reasonable

record, and a statement of its findings, so the reviewing court can understand

how the agency came to its conclusion. "We cannot accept without question an

agency's conclusory statements, even when they represent an exercise in agency

expertise. The agency is obliged . . . to tell us why" it reached a result. Balagun


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                                        4
v. N.J. Dep't of Corr., 361 N.J. Super. 199, 202-03 (App. Div. 2003) (internal

quotation marks and further citations omitted); see also Blyther v. N.J. Dep't of

Corr., 322 N.J. Super. 56, 63 (App. Div. 1999) (stating that "[n]o matter how

great a deference we must accord the administrative determination, we have no

capacity to review the issues at all 'unless there is some kind of reasonable factual

record developed by the administrative agency and the agency has stated its reasons'

with particularity") (quoting In re Issuance of a Permit, 120 N.J. 164, 173 (1990)).

      The Commissioner has circumscribed his discretion over inmate

placement by adopting regulations that delegate placement decisions to various

agency officials, subject to prescribed factors. "[A]n administrative agency

ordinarily must enforce and adhere to, and may not disregard, the regulations it

has promulgated." Cnty. of Hudson v. N.J. Dep't of Corr., 152 N.J. 60, 70

(1997).

      With respect to assignment to the RCRP, the agency has adopted an

extensive regulatory scheme. N.J.A.C. 10A:20-4.10(a) vests an initial decision

in the ICC, once the Institutional Community Release Program Coordinator

determines that the inmate has met eligibility criteria, N.J.A.C. 10A:20-4.8(c),

(e). Eligibility is based on nine identified factors, including achievement of full

minimum status:


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                                         5
(a) Candidates for participation         in   residential
community programs shall:

1. Be classified full minimum by the Institutional
Classification Committee (I.C.C.) except as set forth in
N.J.A.C. 10A:9-3 and 4;

2. Not demonstrate an undue risk to public safety;

3. Have a psychological evaluation which supports
placement in a residential community program and
shall address the inmate's readiness and ability to
adequately adapt to the pressures and responsibilities of
living outside the correctional facility.            The
psychological evaluation shall not be more than 12
months old;

4. Have received medical and dental certification, in
accordance with N.J.A.C. 10A:20-4.9, indicating
medical and dental clearance and that shall not be more
than twelve months old;

5. Have made a satisfactory overall correctional
facility adjustment and be seen as not likely to pose a
threat to the safety of the community;

6. Have completed and signed Form 686--I Community
Program Application for those inmates who are
interested in participating;

7. Have had Form 686--I approved by the Institutional
Classification Committee (ICC);

8. Have been approved by the Residential Community
Program Notification Committee when notification is
required pursuant to N.J.S.A. 30:4-91.8; and



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                           6
            9. Have been found to be an appropriate candidate for
            participation in a residential community program by the
            Assessment and Treatment Center.

            [N.J.A.C. 10A:20-4.4.]

      In addition, the regulations establish time frames for eligibility, in view

of established or anticipated parole dates or eligibility or a "max-out" date, so

long as the inmate does "not demonstrate an undue risk to public safety," and

has not committed arson or certain sex offenses. N.J.A.C. 10A:20-4.5.

      The ICC shall also consider a medical, dental and psychological review

of the applicant. N.J.A.C. 10A:20-4.9. The ICC then determines whether to

approve the inmate's application, based on the "eligibility criteria" in N.J.A.C.

10A:20-4.4, which we have already quoted; any record of parole violations or

prior failures in an RCRP; and the "decisionmaking criteria" in N.J.A.C. 10A:9-

3.3. N.J.A.C. 10A:20-4.10. The twenty-two prescribed criteria in N.J.A.C.

10A:9-3.3 apply to any decision on custody status:

            (a) Decisions on transfers and assignments to housing;
            work, educational, vocational, or treatment programs;
            custody status; and residential community programs
            shall be made after consideration of the following
            factors:

            1. The objective classification scoring          results
            (excluding inmates committed to A.D.T.C.);

            2. Needs and interests expressed by inmate;

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                                       7
3. Age;

4. Family status;

5. Social contacts with family and friends;

6. Correctional facility adjustment;

7. Residential community program adjustment;

8. Educational history and needs;

9. Vocational history and needs;

10. Military history;

11. Nature and circumstance of present offense;

12. Prior offense record;

13. Records from previous confinement;

14. Detainers on file or pending;

15. Substance dependency and/or involvement;

16. Sexual adjustment;

17. History of escape, attempted escape or propensity
for escape;

18. Current psychological and/or psychiatric reports;

19. Medical history and recommendations;

20. Arson history;



                                                        A-1962-18T4
                            8
21. A conviction for any offense that resulted in a life
sentence when one or more of the following
aggravating circumstances are in the inmate's present
or prior offense history (see N.J.S.A. 2C:44-1a.)

      i. Grave or serious harm inflicted on a
      victim, including whether or not the
      offender knew or reasonably should have
      known that the victim was particularly
      vulnerable or incapable of resistance due to
      advanced age, ill health, or extreme youth,
      or for any other reason, the victim was
      substantially incapable of exercising
      normal physical or mental power of
      resistance;

      ii. A substantial likelihood that the
      offender was involved in organized
      criminal activity;

      iii. The offender committed the present
      offense pursuant to an agreement that he or
      she either pay or be paid for the
      commission of the offense and the
      financial incentive was beyond that
      inherent in the offense itself;

      iv. The offender committed the offense
      against a police or other law enforcement
      officer, correctional employee or fireman,
      acting in the performance of his or her
      duties while in uniform or exhibiting
      evidence of his or her authority and/or the
      offender committed the offense because of
      the status of the victim as a public servant;

22. Needs of the correctional facility; and/or


                                                           A-1962-18T4
                           9
             23. Any other factor pertinent to the inmate's case.

             [N.J.A.C. 10A:9-3.3.]

      Furthermore, in considering a custody status change, the ICC must consider

"all relevant factors," which "may include, but are not limited to" the following:

             1. Field account of the present offense;

             2. Prior criminal record;

             3. Previous incarcerations;

             4. Correctional facility adjustment;

             5. Residential community program adjustment;

             6. The objective classification score;

             7. Reports from professional and custody staff;

             8. A conviction for a present or prior offense that
             resulted in a life sentence; and

             9. Any reason which, in the opinion of the
             Administrator and the I.C.C., relates to the best
             interests of the inmate or the safe, orderly operation of
             the correctional facility or the safety of the community
             or public at large.

             [N.J.A.C. 10A:9-4.5(a).]

      A prison administrator may overrule the ICC's approval "when the

Administrator has information which was not available to the I.C.C. when the

. . . application was approved."         N.J.A.C. 10A:20-4.10(c).      However, an

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                                          10
administrator may not overrule the ICC's disapproval of an application.

N.J.A.C. 10A:20-4.10(b).

      The regulations do not expressly empower the OCP to override the ICC

decision to place an inmate in an RCRP. However, the Commissioner or his or

her designee retains the power to decide that an inmate is not suited for

community placement.        The regulation states, "Candidates are eligible for

participation in a residential community program when the candidate: 1. Is

otherwise eligible . . . and is determined by the Commissioner or designee to be

appropriate for participation in a residential community program." N.J.A.C.

10A:20-4.5(b)(1).

      We take judicial notice that the Commissioner adopted a rule exemption

in March 2019. See N.J.R.E. 202(b); N.J.R.E. 201(a). The rule exemption states

that the "additional layer of review" the OCP provides is designed "to ensure

that the appropriate inmate(s) entering the residential programs do not pose an

undue risk to the inmate and/or public safety" and to ensure that participation in

community programs "is reviewed in a consistent manner across all inmates, and

all correctional facilities."

      Neither N.J.A.C. 10A:20-4.5(b)(1) nor the rule exemption expressly

require the OCP as designee, to apply the numerous factors governing general


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                                       11
and specific eligibility for the RCRP.      However, we do not interpret the

regulation to grant the OCP unbridled discretion to grant or deny RCRP

placement. In would make little sense to impose the extensive set of criteria

governing the ICC decision, if the ultimate decision were untethered to them.

Rather, we assume that the OCP will consider those same factors.

      We draw an analogy to the Court's method of reviewing a prosecutor's

discretionary decision to deny admission to a pretrial intervention program. The

Court stated, "We presume that a prosecutor considered all relevant factors,

absent a demonstration by the defendant to the contrary." State v. Wallace, 146

N.J. 576, 584 (1996). However, that presumption is predicated on an adequate

statement of the factors that the prosecutor did consider. "[A] reviewing court's

scrutiny is generally limited to the justification contained in the statement of

reasons." Ibid.

      Consistent with the principles set forth at the outset of our legal

discussion, the OCP was obliged to provide a reasoned explanation for its

decision. We recognize that an inmate's prior criminal record is a relevant factor

under the regulations. See N.J.A.C. 10A:9-3.3(a)(12) ("[p]rior offense record");

N.J.A.C. 10A:9-4.5(a)(2) ("[p]rior criminal record"). However, it is one of

many. Even assuming the OCP considered "all relevant factors," the OCP did


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                                       12
not provide an adequate statement of its reasons. It is not enough to state it

denied Moore placement in an RCRP because of his "criminal history" when

everyone in State custody has one. 1 To enable judicial review, and to guard

against an abuse of discretion, the OCP was obliged to describe the nature of

Moore's criminal history, explain why it evidently tipped the balance against his

participation in an RCRP, and discuss the other relevant factors it considered.

      As the OCP did not adequately explain its decision, we are unable to

ascertain whether it was a reasoned exercise of discretion, or an arbitrary and

capricious one. We therefore remand for reconsideration and a decision that

reflects compliance with the agency's regulatory framework.

      Remanded for reconsideration. We do not retain jurisdiction.




1
   The evident purpose of an RCRP is to promote an inmate's successful
adjustment to life back in the community. It does so by combining gradual
reentry with the supports and supervision of the community program. We note
that whether or not Moore is assigned an RCRP, he will eventually complete his
sentence and be released back into the community. The agency must ultimately
determine if it will serve the public's interest, as well as the inmate's, to precede
that release by assignment to an RCRP, and if so, when.
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                                        13
