AMBROSE HARRIS 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NOT FOR PUBLICATION WITHOUT THE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-3545-07T23545-07T2

AMBROSE HARRIS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted September 29, 2009 - Decided

Before Judges Rodr guez and Yannotti.

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

Ambrose Harris, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Ambrose Harris (Harris), an inmate at the New Jersey State Prison (NJSP), appeals from a final determination of the Department of Corrections ordering his placement in the prison's Management Control Unit (MCU). We affirm.

Harris is presently serving a sentence of life without parole and a life sentence with eighty-two and one-half years without parole, for various convictions, which include murder, felony murder, kidnapping, robbery, and aggravated sexual assault. Previously, Harris was convicted of numerous offenses including receiving stolen property, trespassing, atrocious assault and battery, attempted robbery, larceny, breaking and entering, assault with an offensive weapon, armed robbery, assault and battery upon a police officer, arson, and aggravated assault. With the exception of about two years, Harris has been in prison since 1971.

During his present confinement at NJSP, which began in 1993, Harris has been found guilty of fifty-eight disciplinary infractions, which include a charge of killing inmate R. Simon, ten charges for threatening other persons with bodily harm, eight charges of assaulting other persons, and a charge of assaulting a person with a weapon. Other charges include indecent exposure, destroying, altering or damaging government property, refusing to obey the order of any staff member, using abusive or obscene language to a staff member, failing to stand count, and interfering with the taking of count. During his present period of incarceration, Harris has spent about eleven years in administrative segregation.

During his prior incarcerations, Harris was found guilty of more than a hundred institutional infractions, including fighting with other inmates, threatening to kill guards, sexual assault upon an inmate, failing to obey an officer, pressuring an inmate to engage in sexual relations and then stabbing the inmate with a fork, and threatening a corrections officer. During this period, Harris spent extended periods of time in administrative segregation.

On January 23, 2008, Harris was served with notice that he was to be placed in the MCU, and he was provided with a statement of the grounds for MCU placement. The Management Control Unit Review Committee (MCURC) conducted a placement hearing on February 1, 2008. Harris was present with counsel substitute. When told that the hearing was going to begin, Harris reportedly made an obscene statement and said, "[j]ust send me the decision in the mail."

The MCURC rendered its placement decision dated February 6, 2008, in which it reviewed Harris's disciplinary record during his present term of confinement, past criminal offenses, prior institutionalizations, reports by professional staff, evidence showing an attitude indicating an unwillingness to follow rules and obey orders, work record, evidence of an unsatisfactory adjustment to or performance in treatment programs, and record of past housing assignments.

Based on this information, the MCURC made the following findings:

What is of particular concern to the [MCURC] is inmate Harris's extensive disciplinary history, history of violence and his repeated anti-social behavior. Inmate Harris's vicious assault on inmate Simon, R. 271211, which resulted in his death, is a clear demonstration of the potential dangers associated with this individual and of the potential that this propensity for violent behavior will continue.

Inmate Harris's extensive disciplinary record clearly demonstrates an escalating pattern of violence that would surely lead to continuous assaults, victim injury and/or additional deaths if corrective action is not taken and the security precautions associated with his housing were lifted.

It is the opinion of the MCURC that inmate Harris realistically poses a very real risk to the safety of others and to the security of this facility or for that matter any facility that the inmate [may be] assigned to. This perception of his current danger to others is based upon factual accounts of prior incidents that are irrefutable.

It is the opinion of the MCURC that Inmate Harris [cannot] successfully house in any setting other than that of the strictly regulated setting of [the MCU], as the enhanced security provided by the [MCU] is deemed to be essential in maintaining Inmate Harris in a safe and secure environment.

Harris filed an administrative appeal from the decision of the MCURC with the administrator of the NJSP. The administrator upheld the MCURC's decision. This appeal followed.

Harris raises the following issues for our consideration:

Point I:

THE MARCH 7, 2008 DECISION BY ADMINISTRATOR [MICHELLE] R. RICCI WHICH REFUSED TO CONSIDER THE OVERWHELMING EVIDENCE OF SELF DEFENSE IN THE 1999 DEATH OF INMATE R. SIMON DURING PETITIONER'S APPEAL OF THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE'S DECISION VIOLATED THE MANDATES OF N.J.A.C. 10A:5-2.6(B)(3), 10A:31-16.1(B) AND THIS COURT'S FINDINGS IN DECAMP VS. DEPARTMENT OF CORRECTION [SIC], 386 N.J. SUPER. 531 (App. Div. 2006) AND SHOULD BE REVERSED AND REMANDED BACK TO THE AGENCY.

Point II:

THE FINAL AGENCY DECISION WHICH PLACED PETITIONER IN THE MANAGEMENT CONTROL UNIT VIOLATED SEVERAL AGENCY GUIDELINES AS THEY ARE DEFINED WITHIN THE NEW JERSEY ADMINISTRATIVE CODE AND SHOULD BE REVERSED [AND] REMANDED BACK TO THE AGENCY.

A. Violation of N.J.A.C. 10A:5-2.1(a)

B. Violation of N.J.A.C. 10A:5-2.5(a-c)

C. Violation of N.J.A.C. 10A:5-2.6

D. Violation of N.J.A.C. 10A:5-2.7(a-c)

E. Violation of N.J.A.C. 10A:5-2.8(a-f)

F. Violation of N.J.A.C. 10A:5-2.10 (a-f)

G. Violation of N.J.A.C. 10A:5-2.23(a)

H. Violation of N.J.A.C. 10A:5-2.25 (a-c)

Point III:

APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL SUBSTITUTE DURING HIS MANAGEMENT CONTROL HEARING AND THE MATTER SHOULD BE REVERSED [AND] REMANDED BACK TO THE AGENCY FOR REVIEW.

We are convinced from our thorough review of the record that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We add the following brief comments.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994) (citing Gloucester County Welfare Bd. v. NJ Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

In determining whether the agency's action is arbitrary or unreasonable, we consider: 1) whether the agency's decision offends the State or Federal Constitution; 2) whether the action violated express or implied legislative policies; 3) whether there is substantial credible evidence in the record to support the agency's findings; and 4) whether the agency clearly erred in reaching a conclusion unsupported by relevant factors. Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

We are satisfied that, notwithstanding Harris's arguments to the contrary, the agency's decision was reached in accordance with the administrative procedures governing MCU placements. See N.J.A.C. 10A:5-2.4 to -2.7. We are additionally satisfied that the administrator's final decision to place Harris in the MCU is supported by sufficient credible evidence in the record. In our judgment, Harris's prior criminal record, his extensive record of disciplinary infractions, and his history of violent conduct in the institutional setting fully justified his placement in the MCU.

Affirmed.

 

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A-3545-07T2

October 15, 2009