DUMISANI BANKOLE v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6782-04T16782-04T1

DUMISANI BANKOLE,

Appellant,

vs.

DEPARTMENT OF CORRECTIONS,

Respondent.

__________________________________

 

Submitted: May 1, 2006 - Decided May 15, 2006

Before Judges Cuff and Holston, Jr.

On appeal from a Final Agency Decision of the Department of Corrections.

Dumisani Bankole, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Dumisani Bankole is serving an aggregate forty-eight year prison term with a parole ineligibility term of twenty-two and one-half years. In his notice of appeal, Bankole challenged the calculation of commutation credits by the Department of Corrections (DOC) and his continued classification to gang minimum custody status. The inmate concedes that the commutation credit issue is moot following entry of the August 31, 2005 second amended judgment of conviction. The sole issue before this court, therefore, is the inmate's status as determined by a DOC classification committee.

Our review of an agency decision is limited. We will intrude only when the agency decision is arbitrary, capricious or unsupported by the credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Our review is also guided by the nature of the right asserted by the inmate. Here, Bankole contests his gang minimum custody status. He asserts that his classification should be full minimum custody status.

An inmate does not have a liberty interest in being granted a reduced custody status. Pursuant to N.J.A.C. 10A:9-4.2, a reduction in custody status is a privilege and not a right and prisoners have no constitutionally protected liberty interest in reduced custody status. Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979); Moore v. Dep't of Corr., 335 N.J. Super. 103, 109 (App. Div. 2000); Muhammad v. Balicki, 327 N.J. Super. 369, 372-73 (App. Div. 2000); White v. Fauver, 219 N.J. Super. 170, 178 (App. Div. 1987). The commissioner of the DOC has sole discretion to determine the custody status of New Jersey inmates. N.J.S.A. 30:4-91.1 to -91.2; N.J.S.A. 30:1B-6; Smith v. Dep't of Corr., 346 N.J. Super. 24, 30 (App. Div. 2001). Moreover, even though an inmate satisfies the criteria for assignment to a reduced custody status, the classification committee is not obligated to assign the inmate to a reduced custody status. N.J.A.C. 10A:9-4.6.

On the other hand, the administrative decision advancing or not advancing an inmate to a lesser custody status may not be arbitrary or unreasonable. White, supra, 219 N.J. Super. at 180. Here, the committee reported that it declined to assign Bankole to full minimum custody status because he had too much time remaining on his sentence, specifically more than six years before his parole ineligibility term was satisfied. Notably, an inmate's classification status is reviewed periodically. Bankole's custody status is subject to review in August 2006, and the amendment of the judgment of conviction and an accurate measure of his commutation time may influence the classification committee. Nevertheless, there are no hard and fast rules for the length of time an inmate will serve in gang minimum status. The length of time any inmate serves in a custody status is within the discretion of the classification committee. N.J.A.C. 10A:9-4.3(d) and 10A:9-4.6(a).

We, therefore, affirm the agency determination to deny Bankole full minimum custody status.

 

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A-6782-04T1

May 15, 2006