                                NOT FOR PUBLICATION WITHOUT THE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-3283-17T1

COREY WASHINGTON,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                    Submitted March 20, 2019 – Decided June 24, 2019

                    Before Judges Fuentes and Moynihan.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Corey Washington, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Erica R. Heyer, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Corey Washington, an inmate sentenced in 1990 to thirty-years in state

prison without parole eligibility, appeals from a final Department of Corrections

(DOC) decision that denied him full minimum custody status, N.J.A.C. 10A:9-

4.1(a)(5); N.J.A.C. 10A:9-4.3(e). Appellant contends the decision was arbitrary

and capricious. We agree and reverse.

      In preparation for its review of appellant's classification, the DOC

assessed appellant using The Reclassification Instrument for Male Inmates (the

Instrument), N.J.A.C. 10A:9-2.2(a)(3), an "objective classification scoring

instrument[] for the standardized evaluation and custody assignment of

inmates." N.J.A.C. 10A:9-2.2(a). Applying the criteria set forth in N.J.A.C.

10A:9-2.6(b), appellant's total score was one, indicating "a recommendation for

placement into minimum custody status." N.J.A.C. 10A:9-2.6(a)(3). In that

"[t]he criteria set forth in this subchapter and the objective classification

instrument score shall be applied by the [DOC's] Institutional Classification

Committee [(ICC)] to determine whether an inmate is eligible for reduced

custody consideration," N.J.A.C. 10A:9-4.1(b), appellant was eligible to be

considered for full minimum status, N.J.A.C. 10A:9-4.6(a).1



1
   The DOC does not contend that appellant was disqualified for full minimum
status under any other criterion set forth in N.J.A.C. 10A:9-4.6.
                                                                         A-3283-17T1
                                        2
         Notwithstanding appellant's eligibility for full minimum status, the ICC

voted unanimously to deny final approval for reduced status. The committee

members each set forth their handwritten reasons for voting "no":

    T. R.2                                   [two] victims; [one] deceased, [one]
                                             injured. [Appellant] has not taken
                                             programs to address crime or victims.
                                             Not suitable for [full minimum].
    M. T.                                    - Correctional facility adjustment[.]
                                             [Appellant] has not taken any program
                                             to address crime.
    Lt. S.                                   Nature of charges/offense

    F. M. P.                                 Lack of adjustment while in
                                             custody[;] violence of criminal act.
    M. G.                                    Nature of charges and correctional
                                             [i]nstitution [unintelligible]


         In its merits brief, the DOC contends: "The ICC denied full minimum

custody and requested a K-1 override,[3] finding that the field account of

[appellant's] offense (murder) indicated reduced custody was not appropriate.

The K-1 override was approved. As a result, [appellant] was assigned to gang

minimum status."



2
  We use the initials of the committee members only because we could not
decipher all of their handwritten names.
3
 N.J.A.C. 10A:9-2.14(a) describes a number of override codes, including Code
K-1, N.J.A.C. 10A:9-2.14(a)(12)(i).
                                                                           A-3283-17T1
                                         3
      Although an inmate has no right to reduced custody status, N.J.A.C.

10A:9-4.2, and the ICC is not obligated to grant full minimum custody status

even if an inmate qualifies, N.J.A.C. 10A:9-4.6(c), 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.), modified sub. nom., Jenkins v. Fauver, 108 N.J. 239 (1987).

      "[N]o matter how great a deference the court is obliged to accord the

administrative determination . . . , it has no capacity to review at all unless . . .

the agency has stated its reasons grounded in th[e] record for its action." In re

Issuance of a Permit by Dep't of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164,

173 (1990) (first alteration in original) (quoting State v. Atley, 157 N.J. Super.

157, 163 (App. Div. 1978)). We cannot exercise deference 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).

      "The requirement of findings is far from a technicality and is a matter of

substance. It . . . is a fundamental of fair play that an administrative judgment

express a reasoned conclusion. A conclusion requires evidence to support it and


                                                                             A-3283-17T1
                                         4
findings of appropriate definiteness to express it."     N.J. Bell Tel. Co. v.

Commc'n Workers of Am., 5 N.J. 354, 375 (1950) (citation omitted).            An

administrative agency "must set forth basic findings of fact, supported by the

evidence and supporting" its determination "for the salutary purpose of

informing the interested parties and any reviewing tribunal of the basis on which

the final decision was reached so that it may be readily determined whether the

result is sufficiently and soundly grounded or derives from arbitrary, capricious

or extra-legal considerations." Ciba-Geigy Corp., 120 N.J. at 172 (quoting In re

Application of Howard Sav. Inst., 32 N.J. 29, 52 (1960)).

      "[W]hen an inmate cannot be assigned to the recommended custody status

indicated by the custody status score on [the Instrument], the appropriate

override code shall be applied and any specific information concerning the

reason for the override shall be documented and maintained in the inmate

record." N.J.A.C. 10A:9-2.14(a). When the ICC has a "reasonable belief" "that

the inmate will be unsuccessful in a lower custody status assignment . . . due to

. . . [a f]ield account of the offense pursuant to N.J.A.C. 10A:9-3.3,"4 it can


4
  N.J.A.C. 10A:9-3.3 sets forth twenty-three factors that the ICC must consider
in deciding a custody status. Among the factors is the"[n]ature and circumstance
of the present offense." N.J.A.C. 10A:9-3.3(a)(11).



                                                                         A-3283-17T1
                                       5
request the Division of Operations's approval for medium custody status .5

N.J.A.C. 10A:9-2.14(a)(12)(i).

       Appellant contends the ICC did not request an override. We see nothing

in the record that it did. The K-1 code is not mentioned in any of the record

documents. The DOC did not direct us to a Form OC-001 Request for Override

Approval which "must be completed and forwarded to the Division of

Operations for final approval" when an override is invoked. N.J.A.C. 10A:9-

2.14(a). We were provided with only a "Final Approval for Reduced Custody"

form and a copy of an email from a classification officer to the Division of

Operations, the subject of which reads, "FM Denials" and the body of which is

blank; The Division of Operations's reply was simply, "Approved. Thank you.

. . ." It is not our function, as a reviewing court, to scour the record to find the

facts supporting the arguments raised on appeal. Spinks v. Twp. of Clinton, 402

N.J. Super. 465, 474-75 (App. Div. 2008).

       Further, nothing in the record complies with the regulation's requirement

that "any specific information concerning the reason for the override" be

maintained in appellant's record.      N.J.A.C. 10A:9-2.14(a).       We were not

provided with the field account upon which the K-1 override was based. And


5
    N.J.A.C. 10A:9-4.3(c).
                                                                            A-3283-17T1
                                         6
many of the reasons set forth by the committee members do not relate to the K-

1 reason. Appellant's institutional adjustment may provide a basis for a K-4

override, N.J.A.C. 10A:9-2.14(a)(12)(iv), but does not relate to the K-1 code

upon which the DOC relies. 6

      Nor do we see any reason in the confidential appendix, including the

September 25, 2017 report of the psychological evaluation performed on

appellant, that supported an override or denial of full minimum status.

      We thus determine the DOC's decision to deny appellant full minimum

status was arbitrary and capricious. We fully recognize an inmate has no liberty

interest in his or her custody status, Smith v. N.J. Dep't of Corr., 346 N.J. Super.

24, 29 (App. Div. 2001); see also White, 219 N.J. Super. at 178, and "a reduction

in custody status is a matter of privilege, not of right," Smith, 346 N.J. Super. at

30 (citing N.J.A.C. 10A:9-4.2). We also recognize the DOC's considerable

discretion in determining that status. Ibid. But the record is barren of support

for the DOC's decision.        We thus reverse and remand this matter for

reconsideration of appellant's classification with the direction that the ICC fully


6
   If, in fact, the committee was requesting a K-4 override, it should have
explained why the programs appellant completed – as set forth in his Progress
Notes Report – did not sufficiently address the concerns the members wrote in
as reasons for their "no" votes.


                                                                            A-3283-17T1
                                         7
appraise the factors set forth in N.J.A.C. 10A:9-3.3, and set forth the reasons for

its decision in order that, if again appealed, we may fulfill our obligation to

"engage in a 'careful and principled consideration of the agency record and

findings.'" Williams v. Dep't. of Corr., 330 N.J. Super. 197, 203-04 (App. Div.

2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973));

see generally, Estate of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-02

(App. Div. 2018).

      To the extent not here addressed, we determine appellant's remaining

arguments to be without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(1)(E).

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




                                                                           A-3283-17T1
                                        8
