NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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
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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
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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.
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