KEITH B. MCNEIL 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NOT FOR PUBLICATION WITHOUT THE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-5870-09T1

KEITH B. MCNEIL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________

November 2, 2011

 

Submitted October 25, 2011 - Decided

 

Before Judges Simonelli and Hayden.

 

On appeal from the New Jersey Department of Corrections.

 

Keith B. McNeil, appellant pro se.

 

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jason S. Postelnik, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Keith McNeil appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC), which denied him full minimum custody status and continued his gang minimum custody status. We reverse and remand for further proceedings consistent with this opinion.

At all times relevant to this appeal, McNeil was an inmate of Bayside State Prison (BSP). He is serving a thirty-year term of imprisonment for his 1983 conviction for felony murder.

In November 2009, the BSP Institutional Classification Committee (ICC) issued an objective reclassification scoring instrument for McNeil, which contained the following scores:

Severity of Current Offense: 6

Prior Assaultive Off. History-Last 10yr 0

Escape History-Last 5yr incarceration 0

History of Institutional Viol.-Last 5 yr 0

Number of Disciplinary Reports -2

Most Severe Disciplinary-Last 12 mth 0

Age -2

Program Participation -1

________

Total Score 1

On May 13, 2010, McNeil, then age forty-seven, appeared before the ICC for a status review. The ICC approved McNeil's placement into full minimum custody status. See N.J.A.C. 10A:9-2.6(a)3.

On May 14, 2010, McNeil met with a senior classification officer and the captain in charge of full minimum housing, who both expressed concern about McNeil's prior juvenile record. As a result, BSP advised McNeil that no changes would be made to his custody status pending receipt of his juvenile record.

McNeil's juvenile record revealed that he pled guilty in 1978 to assault with intent to rape. Following the receipt of that information, the ICC met with McNeil on June 24, 2010. The ICC retracted its prior decision to grant him full minimum custody status and recommended no change in his status due to the juvenile offense.

Following another status review on July 29, 2010, the ICC again denied approval for reduced custody status based on McNeil's prior juvenile offense. McNeil was subsequently transferred to Northern State Prison, and then to Southern State Correctional Facility, where he was also denied a reduction in custody status.

On appeal, McNeil contends that the DOC's decision to deny him a reduced custody status is arbitrary, capricious and unreasonable. We agree.

The DOC has six categories of custody status: close custody, maximum custody, medium custody, gang minimum custody, full minimum custody, and community custody. N.J.A.C. 10A:9-4.1(a). Upon admission to the prison facility, an inmate begins the initial classification process. N.J.A.C. 10A:9-2.1(b). At the end of that process, a male inmate appears before the ICC, where his custody status and correctional facility assignment are decided. N.J.A.C. 10A:9-2.1(f).

The ICC periodically reviews and can change an inmate's initial classification and custody status. N.J.A.C. 10A:9-3.5(e), -4.4(a). In so doing, the ICC utilizes an objective reclassification scoring instrument for male inmates, which includes assessment scales that are used to generate the inmate's reclassification score. N.J.A.C. 10A:9-2.2(a)3, (b). The assessment scales are: severity of the offense scale, escape history scale, institutional violence scale, prior felony convictions scale, stability factors scale, number of disciplinary reports scale, severity of offense disciplinary infractions scale, current age scale, and program participation scale. N.J.A.C. 10A:9-2.2(b). In reviewing those scales, the ICC must assess and assign points to certain objective criteria, including the following:

Severity of offense based on the most serious offense in the present commitment . . . ;

 

Prior assaultive offense history based on the most serious assaultive offense in the last 10 years of criminal history . . . ;

 

. . . .

 

Escape history during the previous five years of incarceration from the date of review regardless of the age or legal status of the inmate . . . .;

 

Number of disciplinary reports within the previous 18 months of incarceration prior to review . . . .

 

[N.J.A.C. 10A:9-2.6(b)1, 2, 4, 5 (emphasis added).]

 

The total points determine the custody status on the reclassification instrument for male inmates. N.J.A.C. 10A:9-2.6(a). An inmate's score of four points or less "shall indicate a recommendation for placement into minimum custody status." N.J.A.C. 10A:9-2.6(a)3.

The ICC must consider all relevant factors in the reclassification process, including the objective reclassification score and the inmate's prior criminal history. N.J.A.C. 10A:9-4.5(a). When considering an inmate's past history involving sexual offenses, the ICC must "utilize psychiatric or psychological evaluations which are not more than six months old and which address suitability for reduced custody status." N.J.A.C. 10A:9-4.5(b).

Although an inmate has no right to reduced custody status, N.J.A.C. 10A:9-4.2, and although the ICC is not obligated to grant full minimum custody status even if an inmate qualifies, N.J.A.C. 10A:9-4.6, 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.), modified sub. nom., Jenkins v. Fauver, 108 N.J. 239 (1987).

We reject the DOC's attempt to argue for the first time on appeal that McNeil's escape history and disciplinary infractions further support its decision. The ICC did not rely on these factors, and they cannot be considered on McNeil's reclassification review because they occurred outside the time periods set forth in N.J.A.C. 10A:9-2.6(b)4.

We conclude that the DOC's decision to deny McNeil reduced custody status based on his prior juvenile offense is arbitrary, capricious, and unreasonable for three reasons: (1) the juvenile adjudication occurred in 1978, more than ten years ago, and thus, it could not be considered, N.J.A.C. 10A:9-2.6(b)2; (2) the ICC did not obtain a psychiatric or psychological evaluation, as required by N.J.A.C. 10A:9-4.5(b); and (3) the ICC did not assign any points to the juvenile adjudication, as required by N.J.A.C. 10A:9-2.6(a), leaving McNeil's objective reclassification score at one, which qualifies him for a reduced custody status.

Reversed and remanded with direction to reduce McNeil's inmate custody status to full minimum custody status. We do not retain jurisdiction.