QUDDOOS FARRA'D v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0315-09T1

QUDDOOS FARRA'D,1

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

November 8, 2010

Submitted October 13, 2010 - Decided

Before Judges Baxter and Koblitz.

On appeal from the Department of Corrections.

Quddoos Farra'd, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Quddoos Farra d is a prisoner in the custody of the New Jersey Department of Corrections (DOC) at East Jersey State Prison (EJSP) in Rahway, New Jersey. He appeals the DOC's denial of his request for a reduced custody status, arguing that merged counts should not be considered as separate convictions to bar such consideration.2 We agree with this argument and remand for reconsideration of Farra d s custody status.

After a jury trial appellant was convicted on April 22, 1997, of all ten counts in an indictment charging him with second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(4) (count one); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count two and count three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), downgraded by the jury to the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a)(1) (count four); third-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1(b)(2) (count five); fourth-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1(b)(3) (count six); attempted criminal coercion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-5(a)(7) (count seven); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count eight); third-degree possession of a weapon, N.J.S.A. 2C:39-4(d) (count nine); and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d) (count ten). Initially on September 23, 1997, the trial court sentenced Farra d on each count separately. Following a hearing on our excessive sentencing calendar, in an order dated May 24, 2007, we remanded the matter to the trial court for "consideration of merger issues." An amended judgment of conviction was signed on September 12, 2007, which merged counts two, three, eight, nine and ten into count one. Counts four and six merged into count five. The State dismissed count seven. The trial court sentenced Farra d to twenty years with a ten-year period of parole ineligibility on count one and to a consecutive sentence of five years with a two and one-half year period of parole ineligibility on count five.

On July 22, 2009, Farra d asked the EJSP Classification Committee (Committee) for the reduced custody status of "gang minimum." N.J.A.C. 10A:9-4.3(d).3 A DOC psychological report determined that Farra d was a suitable candidate for "gang minimum" if he was otherwise eligible. The Committee denied the request and determined that Farra d had an E-1 override that barred him from obtaining a custody status lower than "medium." The Administrative Code sections relevant for this appeal are N.J.A.C. 10A:9-2.14, Override Code Reference Index, and N.J.A.C. 10A:9-4.7, Eligibility Criteria for Reduced Custody Consideration. N.J.A.C. 10A:9-2.14, in pertinent part, provides:

(a) In accordance with the description of the override code, when an inmate cannot be assigned to the recommended custody status indicated by the custody status score on the Initial or Reclassification Instruments, the appropriate override code shall be applied and any specific information concerning the reason for the override shall be documented and maintained in the inmate record.

. . . .

5. Code E-1: Permanent custody prohibition/bar. Medium custody status assignment or above only due to sexual or arson offense convictions pursuant to N.J.A.C. 10A:9-4.7.

N.J.A.C. 10A:9-4.7(c),4 in pertinent part, prior to listing sexual crimes, provides:

An inmate who has two or more convictions, either present, prior, or a combination of present and prior for the offenses listed below, or attempts or conspiracies to commit these offenses (see N.J.S.A. 2C:5-1 and 5-2) under the laws of this State, or any comparable offenses from any other state or the United States, is not eligible for reduced custody.

Thus, an E-1 override, preventing "gang minimum" status, applies to an inmate who is serving a sentence for more than one conviction of a sexual offense.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). We will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982). Although we give great deference to administrative decisions, State v. Johnson, 42 N.J. 146, 159 (1964), we do not simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We are not bound by an agency's "determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

Inmates in correctional facilities do not have a constitutionally protected liberty interest in a reduced custody status. Smith v. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001); see also White v. Fauver, 219 N.J. Super. 170, 178 (App. Div. 1987). Accordingly, the Commissioner of the DOC has considerable discretion in determining the custody status of inmates. Smith, supra, 346 N.J. Super. at 29. Moreover, "under New Jersey law, a reduction in custody status is a matter of privilege, not of right." Id. at 30 (citing N.J.S.A. 10A:9-4.2). Although an inmate has no constitutionally protected right to 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.

The DOC considered the merged convictions of aggravated criminal sexual contact, charged in counts two and three of the indictment, as separate convictions for the purpose of the E-1 override. Considering merged counts separately, as if they were distinct convictions, resulting in greater limitations on freedom for an inmate, is fundamentally unfair and runs afoul of the Court's previous decisions concerning merger of counts. See State v. Davis, 68 N.J. 69, 77 (1975) ("[i]f an accused has committed only one offense, he cannot be punished as if for two."); State v. Cole, 120 N.J. 321, 325-26 (1990); State v. Miller, 108 N.J. 112, 116 (1987). A defendant may not be punished twice for the same behavior, although in limited situations merged convictions may survive for sentencing purposes. See, e.g., State v. Pennington, 273 N.J. Super. 289, (App. Div.), certif. denied, 137 N.J. 313 (1994) (if one merged conviction is overturned on appeal the other remains for sentencing purposes); see also State v. Dillihay, 127 N.J. 42 (1992) (when one aspect of a sentence for one of the merged offenses is more severe than that for the other merged offense, the more severe aspects of each sentence should survive merger). See Pressler & Verniero, Current N.J. Court Rules, comment 9 on R. 2C:1-8 (2011) ("[T]he theory of merger is the avoidance of double punishment for a single offense . . . .").

Farra'd has no sexual convictions other than count one of this indictment. He does not fit within the parameters of the E-1 override.

We reverse and remand to the DOC to determine Farra'd's custody status without reference to the E-1 override.

Reversed.

1 The indictment refers to plaintiff as Farrad, however plaintiff spells his name Farra d, which is the spelling we utilize in this opinion.

2 Farra'd also argues that the DOC awarded insufficient jail credits to him. He did not raise this issue in his notice of appeal or his Appellate Division Civil Case Information Statement, nor did the DOC respond to the issue in its brief. Farra'd provides a DOC inmate remedy system form in his appendix, which reflects that the DOC has been waiting over ten months to hear from the trial court before reviewing Farra'd's jail credits. We expect the DOC will review the jail credits expeditiously to avoid further litigation.

3 Inmates classified as having "gang minimum custody status" may be assigned to activities or jobs that require them to move outside the security of the correctional facility but are under continuous supervision of a corrections officer. Farra'd indicates that he requested only "gang minimum inside" status, which would not permit him to go outside the correctional facility.

4 Although N.J.A.C. 10A:9-4.7(a) could be read to preclude reduced custody eligibility for any inmate not housed in the Adult Diagnostic and Treatment Center (ADTC), N.J.A.C. 10A:9-4.8 clarifies that all inmates are eligible for "gang minimum" status if they have only one conviction for a sexual offense and meet other criteria.