GERALD MCNAIR v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GERALD MCNAIR,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________________

August 7, 2014

Submitted January 29, 2014 Decided

Before Judges Fuentes and Haas.

On appeal from the Department of Corrections.

Gerald McNair, appellant pro se.

John J. Hoffman, Acting Attorney General,

attorney for respondent (Lisa A. Puglisi,

Assistant Attorney General, of counsel;

Erin M. Greene, Deputy Attorney General,

on the brief).

PER CURIAM

Appellant Gerald McNair is an inmate currently incarcerated atthe SouthernState Correctional Facility. He is serving a six-yearterm, withtwo andone-half yearsof parole ineligibility, for possession and distribution of a controlled dangerous substance within 500 feet of a public housing complex, N.J.S.A. 2C:35-7.1a. Appellant seeks appellate review of a decision made by the Department of Corrections (DOC) Institutional Classification Committee (ICC), denying his application to be reclassified from "medium custody status" to "full minimum custody status." Mindful of our standard of review, we affirm.

The DOC has promulgated regulations establishing an inmate's custodial status to determine the level of supervision necessary and confinement restrictions required to maintain an appropriate level of security in the prison. N.J.A.C. 10A:9-1.1 to 4.9. One of the "purposes" of this classification scheme is to "[e]stablish objective criteria and a standardized process for inmate evaluation, custody level assignment, and correctional facility assignment[.]" N.J.A.C. 10A:9-1.1(a)(1).

Each individual correctional facility has its own ICC responsible for reviewing and determining the level of confinement and supervision for individual inmates. N.J.A.C. 10A:9-3.1. One ofthe responsibilities of the ICC is to "[r]eview . . . inmate applications for change in custody status." N.J.A.C. 10A:9-3.1(a)(3). Here, the ICC of the Southern State Correctional Facility denied appellant's application for "full minimum custody" status "based upon [the] nature and circumstances of [appellant's] prior offense." The ICC opted instead to reduce appellant's status to "gang minimum custody," resulting in a net enhancement of his custodial status.

In order to appreciate the significance of the ICC decision, we will define and contrast each of the different classifications involved here. Prior to his application, appellant was classified as medium custody status:

MEDIUM CUSTODY STATUS

Inmates classified as "medium custody status" shall be assigned to activities inside the security perimeter of the correctional facility under frequent and direct observation of staff.

[N.J.A.C. 10A:9-4.3(c).]

Appellant sought reclassification to full minimum custody status:

FULL MINIMUM CUSTODY STATUS

Inmates classified as "full minimum custody status" are those assigned to

1. Work details, jobs or programs outside the main correctional facility, (on or off the grounds of the facility) with minimal supervision; and/or

2. A satellite unit or minimum security trailer unit.

[N.J.A.C. 10A:9-4.3(e).]

The ICC reclassified appellant to gang minimum custody status:

GANG MINIMUM CUSTODY STATUS

Inmates classified as "gang minimum custody status" may be assigned to activities or jobs which routinely require them to move outside the security perimeter of the correctional facility, but on the grounds of the facility and under continuous supervision of a custody staff member, civilian instructor or other employee authorized to supervise inmates. The time served in gang minimum custody status shall be at the discretion of the Institutional Classification Committee (I.C.C.).

[N.J.A.C. 10A:9-4.3(d).]

Appellant argues the ICC impermissibly relied on a prior conviction for a robbery he committed in 1992, which he characterizes as a "20 year old ghost." Obviously unaware of the ill-suited irony of his remarks, appellant further argues that even if "he prevails in appellate review The Agency deceptively like a thief accomplished Unjustifiable [sic] denial of the privilege." In response, the DOC urges us to carefully review the Presentence Investigation Report prepared by the probation department describing the violent nature of the crime committed by defendant.

In deciding an inmate's application for a reduced custody status, "the ICC shall take into consideration all relevant factors, . . . include[ing] but not limited to: . . . [the inmate's] [p]rior criminal record." N.J.A.C. 10A:9-4.5(a)(2) (emphasis added). Furthermore, "a reduction in custody status is a matter of privilege, not of right." Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 30 (App. Div. 2001) (citing N.J.A.C. 10A:9-4.2).

The United States Supreme Court has clearly stated that an inmate does not have a constitutionally protected liberty interest in his or her placement by the State's penal authority. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Due process safeguards are only required when a change in an inmate's custody status "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S. Ct. at 2300, 132 L. Ed. 2d at 430.

Relying on Sandin, we have consistently upheld the DOC's institutional prerogative to reclassify an inmate's custodial status based on a variety of reasons. Shabazz v. N.J. Dep't of Corrs., 385 N.J. Super. 117, 119 (App. Div. 2006) (finding that an inmate has no protected liberty interest in being placed in a halfway house); Szemple v. Dept. of Corrections, 384 N.J. Super. 245, 247-48 (App. Div.), certif. denied, 187 N.J. 82 (2006), (concluding that there is no protected liberty interest in upholding the DOC's designation of an inmate as "high risk"); Muhammad v. Balicki, 327 N.J. Super. 369, 371 (App. Div. 2000) (reducing an inmate's custody status that permitted him to enjoy "more mobility and less supervision in the prison than the general prison population").

Our Supreme Court has repeatedly reaffirmed our standard of review in determining the validity of actions taken by a State administrative agency:

Although sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role in reviewing an agency action is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether 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.

[In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385-86, (2013) (internal quotations omitted).]

Although the DOC's mission of confining human beings sometimes implicates protected constitutional rights, this standard of review is equally applicable here. Szemple, supra, 348 N.J. Super. at 248. In this light, we discern no legal basis to interfere with the DOC's decision. The DOC is entitled to rely on the violent nature of appellant's criminal history to determine his appropriate custodial status.

Affirmed.