RONALD BENEDETTO, JR. v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1436-08T21436-08T2

RONALD BENEDETTO, JR.,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________

 
 

 
Submitted January 20, 2010 Remanded

Resubmitted April 13, 2010 Decided

Before Judges Fuentes and Simonelli.

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

The Project Freedom Fund, attorneys for appellant (Robert F. Conley, Staff Attorney, on the brief; Mark A. Fury, Staff Attorney, on the supplemental brief).

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the briefs).

PER CURIAM

Appellant Ronald Benedetto, Jr., an inmate currently confined at South Woods State Prison (SWSP), appeals from the decision of respondent Department of Corrections (DOC) denying his request to reinstate the visiting privileges of his father, Ronald Benedetto, Sr., and his sister, Tina Benedetto-Ryerson. We affirm.

Appellant is currently serving a term of life imprisonment, with a thirty-year period of parole ineligibility. During his confinement at New Jersey State Prison (NJSP), appellant became involved in a large-scale contraband smuggling and money laundering operation (the operation), which was masterminded by another inmate, Miguel Ramos. The operation involved approximately one hundred and thirty-one inmates at NJSP, including appellant, who provided money to Ramos's family members or others outside the prison. The money was furnished either directly by the inmates or by family members of the inmates or others outside the prison. In return, contraband, including drugs, weapons, cellular telephones and escape paraphernalia, was smuggled into NJSP and delivered to the inmates who had paid the pre-arranged price to purchase the items. In total, more than $85,000 was funneled through a bank account that Ramos's family members had established as part of the operation.

A lengthy investigation by the NJSP's Special Investigations Division (SID) revealed that fifty civilians aided certain inmates in the operation. The SID concluded that

These civilians will be subject to permanent visit bans as they have transacted funds with Ramos' family for the purpose of having contraband including weapons, narcotics, cellular telephones and escape paraphernalia smuggled into NJSP. Additionally, these transactions were conducted so as to evade and disrupt the department's ability to control and monitor monetary transactions and correspondence.

Further, inmates and their visitors are on notice of the DOC's zero tolerance policy regarding drugs and alcohol and misuses or possession of electronic communications devices. See N.J.A.C. 10A:1-2.2; Department of Corrections, New Jersey State Prison Visitor's Handbook, 7 (2007) ("Any visitor found attempting to introduce any drug or alcohol or related item(s) into the Institution would be both permanently banned from visitation privileges and ANY inmate under [DOC] custody and is subject to criminal prosecution."), authorized by N.J.A.C. 10A:18-6.1(d).

It is disputed that appellant sent two payments totaling $350 to inmates identified as mail drops for the operation, and that Benedetto and Ryerson sent payments to Ramos's wife totaling $325 and $125 respectively. As a result, the DOC banned Benedetto and Ryerson from visiting appellant pursuant to N.J.A.C. 10A:18-6.3(c), which at the time provided for a permanent ban as follows:

Persons determined, by substantial evidence, to have a harmful influence upon the inmate or to constitute a threat to the security of the correctional facility shall not be granted visitation privileges.

By letters dated November 27, 2006, copies of which were sent to appellant, the DOC notified Benedetto and Ryerson of the ban. On December 5, 2006, the SID provided Benedetto an overview of the basis for the ban.

Appellant was subsequently transferred to SWSP, where he requested reinstatement of visits with his father and sister. SWSP Administrator Karen Balicki initially approved the request and reinstated Benedetto's and Ryerson's visits effective December 22, 2007; however, they were denied entry to the prison on January 27, 2008, because they were on the statewide ban list.

On January 30, 2008, appellant filed an Inmate Request and Remedy (IRR) Form requesting reinstatement of visits with his father and sister. On February 8, 2008, Balicki denied the request because the SID at NJSP had placed Benedetto and Ryerson on the statewide ban list as a result of their involvement in the operation.

On March 6, 2008, Benedetto and Ryerson requested reinstatement of their visiting privileges. In response, on March 18, 2008, Balicki advised them that

We have information that your name[s] . . . were placed on the State-wide ban list by [NJSP]. We, as a New Jersey correctional facility, must honor that list. If your name is to be removed from that list, it would have to be done by [NJSP]. [SWSP] Special Investigations Unit is not at liberty to remove a name from the ban list if it were placed there by another New Jersey facility.

Appellant appealed to the Director of Operations. On July 23, 2008, the Director upheld the ban.

On August 15, 2008, Benedetto and Ryerson requested reinstatement of their visiting privileges. On September 23, 2008, Balicki responded that pursuant to N.J.A.C. 10A:18-6.3(c), the SID at NJSP initiated the permanent ban on Benedetto and Ryerson because they were deemed a potential threat to the prison's operation. Balicki concluded, "I believe [that Benedetto and Ryerson] pose a potential threat to the security of [SWSP] and will not permit their visits at this time." (Emphasis added.)

On June 19, 2008, we rendered our unpublished opinion in Fuscaldo v. Dep't of Corr., No. A-4063-06 (App. Div. June 19, 2008), which involved the permanent visiting ban of the mother of another inmate involved in the operation. In that case, the DOC imposed the ban pursuant to N.J.A.C. 10A:18-6.19(b)(8), which provided for the suspension of an inmate's visiting privilege for "[a]ny action that affects the ability of the staff to ensure the safe, secure and orderly operation of the correctional facility[.]" We remanded to the DOC to address whether (1) the applicable DOC regulations and the manner in which they were applied imposed atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life; (2) additional procedural safeguards are required; (3) a less restrictive sanction could have been imposed; and (4) the ban was proportional to the scope and gravity of the offense. Id., slip op at 5-7.

Appellant filed an appeal with this court on October 29, 2008. In his appellate brief, appellant raised the following contentions:

Point 1: The Administrator of South Woods State Prison unlawfully delegated her authority to approve visits at her facility to the Administrator of New Jersey State Prison in violation of N.J.A.C. 10A:18-6.3(a).

Point 2: The permanent visit ban constitutes a gross violation N.J.A.C. 10A:18-6.19(a).

Point 3: N.J.A.C. 10A:18-6.19(a) confers upon inmate a liberty interest in visitation protected by the due process clause of the Fourteenth Amendment.

Point 4: The permanent visit ban imposed against members of Benedetto Family by reason of its being in violation of both N.J.A.C. 10A:18-6.3(a) (as discussed in Point 1 hereof) and N.J.A.C. 10A:18-6.19(a) (as discussed in Point 2 hereof) is arbitrary, unreasonable and capricious and no court of law must allow it to stand and go unchallenged.

Point 5: The Agency decision to impose a permanent visit ban raises serious procedural and substantive due process violations and concerns which renders it unlawful.

Point 6: The agency decision to impose a permanent visit ban on the Benedettos violates the Rule of Proportionality and constitutes and infliction of Cruel and Unusual Punishment on both the inmate and members of his family in violation of the Eighth Amendment to the United States Constitution.

On March 10, 2009, we granted the DOC's motion to remand this matter to address the concerns raised in Fuscaldo. Benedetto v. Dep't. of Corr., No. A-1436-08 (App. Div. March 10, 2009). In an April 27, 2009 written decision, NJSP Administrator Michelle Ricci addressed the Fuscaldo factors and upheld Benedetto's and Ryerson's visiting bans for the following reasons:

[Appellant] engaged [his] father . . . and sister to participate in an unauthorized criminal activity, by depositing funds into a bank account solely for the purpose of paying the Ramos family to have contraband smuggled into a maximum security facility, such as [NJSP].

. . . .

The decision of the Administrator to permanently ban the aforementioned was rendered pursuant to N.J.A.C. 10A:18-6.3(c), which states that 'persons determined by substantial evidence to have a harmful influence upon the inmate or to constitute a threat to the security of the correctional facility shall not be granted visitation privileges.' Based on the aforementioned statute, the Administrator of a correctional facility has the right to deny an individual(s) visiting privileges based on the substantial evidence provided in the confidential appendix of this case. [Appellant's] father's and sister's actions aided and abetted by [appellant] were determined to pose a substantial risk to the safety and security of this institution.

As to the due process concern noted in Fuscaldo, Ricci concluded that appellant had notice of the potential ban, received copies of the November 27, 2006 letters to his father and sister notifying them of the ban; exercised his due process rights by submitting the IRR form; and continued to exercise his due process rights by appealing Balicki's decision.

Ricci also concluded that there was no less restrictive sanction because appellant had engaged his father and sister in criminal activity that posed "a substantial risk to the safety and security of [NJSP,]" and the ban did not impose an atypical and significant hardship upon appellant in relation to the ordinary incidents of prison life because he could still maintain ties with his father and sister via letters and telephone calls, and he had visiting privileges with other family members and friends. As to the proportionality of the ban to the scope and gravity of the offense, Ricci concluded that the severity of the criminal activity in which the parties engaged, warranted the ban.

On July 6, 2009, the DOC amended N.J.A.C. 10A:18-6.3(c) as follows:

Persons determined, by substantial evidence, to have a harmful influence upon the inmate or to constitute a threat to the security of the correctional facility shall be banned from visiting an inmate committed to the custody of the [DOC] for a minimum of 365 days and the visitor shall be required to apply in writing to the Administrator for approval/disapproval of the reinstatement of visit privileges.

As a result of this amendment, we again remanded for consideration of the visiting ban imposed here, and ordered the parties to file supplemental briefs upon the conclusion of the remand proceeding. Benedetto v. Dep't. of Corr. No. A-1436-08 (App. Div. February 4, 2010). On March 30, 2010, Balicki upheld the ban concluding that

It is a security hazard to permit visits for individuals who have purposely circumvented prison regulations by participating in illegal activity of this magnitude. The introduction of a gun into our maximum security prison is extraordinary; therefore, measures must be taken to ensure the safety of staff, inmates and visitors that lawfully visit.

In his supplemental brief, appellant raises the following additional contention:

Point 1: Four years after it began, the March 30, 2010 agency decision to continue the ban on Benedetto Family visits on the grounds that they constitute a threat to the security of the correctional facility is unreasonable in that it is unsupported by credible evidence in the record.

Appellant argues that N.J.A.C. 10A:18-6.3(c) requires the DOC to prove that his father and sister pose a "present" threat to the security of the correctional facility; the DOC is using this regulation to punish him and other inmates involved in the operation; the DOC has not shown that Benedetto and Ryerson had any knowledge about how their payments would be used; and the amended regulation does not serve to cap the period of the ban.

Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). We will not disturb the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that is, (1) "the agency's action violates expressed or implied legislative policies"; (2) "the record [does not] contain[] substantial evidence to support the findings on which the agency based its action"; and (3) "in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Circus Liquors, supra, 199 N.J. at 10 (quoting Mazza v. Bd. of Trs., Police & Firemen's Retirement Sys., 143 N.J. 22, 25 (1995)); see also In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Decisions of administrative agencies carry with them a presumption of reasonableness. Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not reverse an agency's determination "even if [we] may have reached a different result had [we] been the initial decision maker." Circus Liquors, supra, 199 N.J. at 10. Stated otherwise, we "may not simply 'substitute [our] own judgment for the agency's.'" Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)).

Nonetheless, "although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't. of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Accordingly, our function is not to merely rubberstamp an agency's decision, Williams v. Dept. of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000); rather, our function is "to engage in 'a careful and principled consideration of the agency record and findings.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

"[T]he United States Supreme Court has rejected the notion that an inmate has a liberty interest in unfettered visitation." Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231 (App. Div. 2000) (citing Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506, 515 (1989) and Block v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3232, 82 L. Ed. 2d 438, 447 (1984)), certif. denied, 167 N.J. 630 (2001). "The denial of prison access to a particular visitor 'is well within the terms of confinement ordinarily contemplated by a prison sentence,' and does not 'impose atypical and significant hardship . . . in relation to the ordinary incidents of [inmate] life.'" Id. at 231-32 (quoting Sandin v. Conner, 515 U.S. 472, 483-84, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 429-30 (1995) and Hewitt v. Helms, 459 U.S. 460, 468, 103 S. Ct. 864, 869, 74 L. Ed. 2d 675, 686 (1983)). Accordingly, appellant has no federally-protected liberty interest in visits with his father and sister.

Appellant also has no protected liberty interest under our State constitution. New Jersey law provides that "the denial of contact visits is constitutionally non-offensive if reasonably related to legitimate governmental objectives." Walker v. Dep't. of Corr., 324 N.J. Super. 109, 114 (App. Div. 1999) (citing Block, supra, 468 U.S. at 586-87, 104 S. Ct. at 3232-3233, 82 L. Ed. 2d at 447-48. Maintaining security and order at a prison, assuring that no weapons or illicit drugs reach inmates, limiting the exposure of inmates to drugs, controlling the intra-prison flow of contraband, and protecting prison guards and other inmates, are all legitimate governmental objectives. See Bell v. Wolfish, 441 U.S. 520, 540, 99 S. Ct. 1861, 1874 60 L. Ed. 2d 447, 469 (1970); Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 761 (3d Cir. 1979); Hodges v. Klein, 412 F. Supp. 896, 900 (D.N.J. 1976); State v. Manghan, 126 N.J. Super. 162, 166-67 (Law. Div. 1973).

Further, the DOC has the authority to ban any visitor who is determined, by substantial evidence, to constitute a threat to the security of the correctional facility. N.J.A.C. 10A:18-6.3(c). "Substantial evidence" means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Public Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). The term has also been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (2002).

Here, the DOC denied Benedetto and Ryerson contact visits with appellant based on legitimate government objectives. There is substantial, undisputed evidence that these individuals participated in a sophisticated smuggling scheme that resulted in the introduction of contraband, including a gun and drugs, into the prison, and that their conduct created a serious safety and security threat to prison guards and other inmates. The lack of evidence showing that Benedetto and Ryerson knew how their money would be used does not change this result. They made their payments to an inmate's wife instead of using the system established by the DOC to monitor inmate monetary transactions. At the very least, they should have questioned appellant about this manner of payment.

Moreover, the visiting ban does not impose atypical and significant hardship on appellant in relation to the ordinary incidents of prison life. Appellant has not lost all visiting privileges. He still has visiting privileges with other family members and friends. He also is not deprived of maintaining a relationship with his father and sister, as he can communicate with them via mail or telephone.

The visiting ban is also proportional to the scope and gravity of the offense appellant, Benedetto and Ryerson committed. It is a reasonable sanction that was fairly imposed on all those who participated in a scheme that threatened the prison's safety and security. Moreover, nothing prevents Benedetto and Ryerson from seeking reinstatement of their visiting privileges in the future. Finally, we are satisfied that appellant received all procedural safeguards to which he was entitled.

Appellant's contentions that Balicki violated N.J.A.C. 10A:18-6.3(a) by delegating her authority to approve visits to NJSP's administrator, that the permanent ban violates N.J.A.C. 10A:18-6.19(a) and constitutes cruel and unusual punishment under the Eight Amendment, that N.J.A.C. 10A:18-6.19(a) creates a liberty interest in his visiting privileges, and that the DOC must prove that Benedetto and Ryerson pose a present threat to the security of the correctional facility are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

This unpublished opinion does not constitute precedent and is not binding on us. R. 1:6-3. We only cite this opinion because the DOC cited it as the basis for a remand.

N.J.A.C. 10A:18-6.19 was amended effective July 6, 2009. The new citation for this provision is N.J.A.C. 10A:18-6.19(b)(12).

U.S. Const. amend. VIII.

Footnote continued on next page.

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A-1436-08T2

February 4, 2010

September 3, 2010