CARL SPASOFF v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0144-08T30144-08T3

CARL SPASOFF,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted August 4, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from a Final Determination of the New Jersey Department of Corrections.

Carl Spasoff, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Carl Spasoff is an inmate in the custody of the Department of Corrections (DOC) who is currently serving a three-year, nine-month term of imprisonment as a result of a November 26, 2007 determination that Spasoff had violated the conditions of his December 20, 2004 parole on his underlying theft and burglary conviction. Prior to his parole, Spasoff had held full minimum custody status for approximately three months; however, once he was returned to prison as a result of the parole violation, he was assigned to the more restrictive gang minimum custody status. DOC based that classification determination on Spasoff's May 23, 2000 conviction for attempted escape from a New York correctional facility. Spasoff's gang minimum custody status was reviewed by the Institutional Classification Committee (Committee) on March 27 and June 17, 2008, and that classification remained unchanged. On August 25, 2008, the Assistant Superintendent affirmed the Committee's June 17, 2008 decision assigning Spasoff to gang minimum status.

On appeal, Spasoff maintains that the June 17, 2008 decision must be reversed because: 1) applicable administrative regulations entitle him to full minimum status once five years have elapsed from the date of the attempted escape; 2) the attempted escape was not considered by the Committee to be a basis for denying him a reduction in custody status when, on September 2, 2004, the Committee awarded him full minimum custody status; 3) there has been no change in his prison record subsequent to September 2004 "that now could be used as a rational basis to currently deny [him] reduced custody status"; and 4) DOC has treated him less favorably than other similarly situated inmates. We affirm.

I.

An inmate has no constitutionally protected liberty interest in reduced custody status. Smith v. N.J. Dept. of Corrs., 346 N.J. Super. 24, 29-30 (App. Div. 2001); White v. Fauver, 219 N.J. Super. 170, 178-79 (App. Div. 1987). Moreover, a reduction in custody status is a matter of privilege, not of right. N.J.A.C. 10A:9-4.2. Although inmates do not have a protected liberty interest in a reduced custody status, we have not hesitated "to strike down arbitrary action" and have insisted upon "procedural fairness in the administrative process." White, supra, 219 N.J. Super. at 180. However, as with all agency decisions, our scope of review is a narrow one, and Spasoff's contentions are reviewed in accordance with that standard. We must affirm unless the agency's decision was arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

N.J.A.C. 10A:9-3.3 contains twenty-three criteria governing the Committee's determination of an inmate's custody status. In particular, DOC relies upon N.J.A.C. 10A:9-3.3(a)23, which permits the Committee to consider "[a]ny other factor pertinent to the inmate's case." Relying on that subsection, DOC maintains that Spasoff's conviction for attempted escape justifies his classification to gang minimum status.

Spasoff argues that DOC is not entitled to rely on that conviction once five years have elapsed from the date of his attempted escape. He points to N.J.A.C. 10A:9-4.6(w)2, which provides that inmates who have been convicted of escape or attempted escape from moderate security facilities or county jails "shall be eligible" for full minimum custody status "when five years have elapsed from the date of . . . the attempted escape."

As is evident from the language of the regulation, inmates are not guaranteed full minimum status once five years have elapsed. Instead, the running of five years merely serves to remove the absolute bar to full minimum status that governs when five years have not yet elapsed. We must therefore determine whether the Committee's refusal to reduce Spasoff's custody status was arbitrary or capricious. Spasoff argues that we should so hold, because the Superintendent at Northern State Prison has routinely granted full minimum status to other inmates who have been convicted of escape or attempted escape once the five-year disqualification period has run. We decline to consider that argument because it lacks support in the record. Moreover, his claim of disparate treatment was not presented at the agency level and consequently we will not entertain it on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

We likewise reject Spasoff's argument that because DOC chose not to consider that conviction in September 2004 when it granted him full minimum custody status, it is now barred from relying on his escape conviction. Spasoff's argument ignores his intervening parole violation, which demonstrates that Spasoff's willingness to comply with DOC rules has not been unwavering. His argument also ignores N.J.A.C. 10A:9-4.2, which provides that a reduction in custody status is a matter of privilege, not of right.

Moreover, the applicable agency regulation, N.J.A.C. 10A:9-3.3(a)12, expressly permits DOC to rely upon an inmate's "[p]rior offense record" as a basis for denying a request for reduced custody status. We have been presented with no meritorious basis upon which to disturb the agency's conclusion that Spasoff's escape conviction justifies maintaining him at gang minimum status. Under those circumstances, Spasoff has failed to meet the heavy burden imposed upon him by Henry, supra, 81 N.J. at 579-80. Consequently, we affirm the decision under review.

DOC assures us that its decision denying Spasoff's application for full minimum custody status is not a final, immutable determination and that the Committee will periodically review Spasoff's custody status. We express no opinion concerning the merits of any future review of Spasoff's request for reduced custody status.

 
Affirmed.

The record does not specify the nature of the parole violation.

Spasoff refers in his brief to a March 10, 2009 decision of the Committee again continuing him at gang minimum custody status. We do not consider such purported action because it occurred after the filing of his notice of appeal and is not part of the record.

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A-0144-08T3

August 17, 2009