LARRY RUSH v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LARRY RUSH,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

______________________________

January 26, 2017

 

Submitted September 27, 2016 Decided

Before Judges Fisher and Ostrer.

On appeal from the New Jersey Department of Corrections.

Larry Rush, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Kevin J. Dronson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Larry Rush, a prison inmate, appeals from the January 12, 2016 denial of his application for release to a halfway house, formally known as the residential community release program. We affirm.

Rush filed his halfway house application in October 2015, less than two months after he was returned to prison for violating mandatory conditions of parole supervision. He had previously served most of a six-year sentence imposed on convictions of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), and fourth-degree cruelty and neglect of children, N.J.S.A. 9:6-3.

When he applied for the halfway house, Rush had already been approved for "full minimum status," which entitled him to serve his sentence at the farm unit of the prison. On December 21, 2015, Rush was informed his application for halfway house was approved, pending approval of the Office of Community Programs (OCP). On January 12, 2016, OCP denied Rush's application because of his escape history. Rush escaped from a halfway house in 1993, while serving a previous sentence.

On appeal, Rush contends the denial violated the department's regulations, there was inadequate evidence of the 1993 escape, and the department acted arbitrarily and capriciously, once it had granted him full minimum status.

Our scope of review is limited. In re Taylor, 158 N.J. 644, 656 (1999). Ordinarily, we will reverse the department only when its decision is arbitrary, capricious, unreasonable, or unsupported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An inmate does not have a constitutionally protected liberty interest in placement by a state's penal authority. Sandin v. Conner, 515 U.S. 472, 480, 115 S. Ct. 2293, 2298, 132 L. Ed. 2d 418, 427 (1995). Based on that principle, we have consistently upheld the department's placement and classification decisions. In particular, we have found that an inmate has no protected liberty interest in being placed in a halfway house. Shabazz v. N.J. Dep't of Corr., 385 N.J. Super. 117, 123 (App. Div. 2006).

We discern no basis to disturb the agency's decision here. Rush misplaces reliance on the fact that he was granted full minimum status. An escape shall not disqualify an inmate from receiving full minimum status if two or five years have elapsed since the escape, depending upon the facility from which the inmate escaped. N.J.A.C. 10A:9-4.6(o)(2), (3). However, the Department has expressly retained the discretion to deny halfway house release based on "[a] previous violation of a furlough, work release, electronic monitoring, or residential community program . . . ." N.J.A.C. 10A:20-4.7(b). Therefore, the Department had the authority to deny halfway house release based on Rush's escape from a previous halfway house placement, notwithstanding its award of full minimum status.

In challenging the fact of his escape, Rush relies on a May 15, 2013 progress note entry that someone "[a]ttempted to confirm inmate escape % Newark House 1-25-93/ return DOC 1-26-93. All prior to ITAG.1 No record of adjudication or lack of adjudication[.] Therefore, escape alert will remain." This hardly renders the Department's reliance on Rush's escape history to be arbitrary, or without factual support. Furthermore, the record does not disclose any competent evidence, presented to the agency, that the record of the escape was erroneous. In fact, in the partial copy of Rush's January 22, 2016 letter to OCP seeking review of his denial, Rush actually acknowledged his escape history stating, "[a]s for my escape" without denying it.

To the extent not addressed, Rush's remaining points lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D).

Affirmed.

1 "ITAG" apparently is a database used by the Department's classification units, which apparently did not exist in 1993. See Paskett v. S. State Corr. Facility, No. Cum-L-911-13 (Law Div. 2016) (slip op. at 80) (describing "iTag"); see also Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 155 n.3 (App. Div. 2008) (permitting citation of unpublished opinions for evidential, as opposed to precedential purposes, consistent with Rule 1:36-3), cert. denied, 199 N.J. 129 (2009).