NGOMBE AUSAR WAJAGGA 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NOT FOR PUBLICATION WITHOUT THE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-5738-17T4

NGOMBE AUSAR WAJAGGA,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                   Submitted November 21, 2019 – Decided December 13, 2019

                   Before Judges Suter and DeAlmeida.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Ngombe Ausar Wajagga, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Donna Sue Arons, Assistant Attorney
                   General, of counsel; Christopher Josephson, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Ngombe Wajagga (appellant) appeals the July 5, 2018 denial of his

request for a reduction in custody status from gang minimum custody status to

full minimum custody status. We affirm.

                                      I.

      Appellant was convicted of first-degree robbery,  N.J.S.A. 2C:15-1, and

first-degree aggravated manslaughter,  N.J.S.A. 2C:11-4, for the robbery and

shooting death of a gas station attendant in Laurel Springs. He was sentenced

in February 1999, to an aggregate forty-six year term of incarceration with an

aggregate twenty-three year period of parole ineligibility. 1 Appellant is an

inmate at South Woods State Prison (SWSP).

      On June 12, 2018, the SWSP Institutional Classification Committee

(ICC)2 unanimously denied appellant's request to reduce his custody




1
  He was sentenced to a sixteen-year term on the robbery count with eight years
of parole ineligibility, and to a thirty-year term with fifteen years without parole
on the aggravated manslaughter count.
2
  The ICC is responsible to "[r]eview . . . inmate applications for change in
custody status . . . ." N.J.A.C. 10A:9-3.1(a)(3). It is comprised of the
administrator of the institution, director of education, social work supervisor,
correction major, supervising classification officer and other staff or designees.
N.J.A.C. 10A:9-3.2(a)(1) to (5).


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classification status from gang minimum custody status 3 to full minimum

custody status,4 based on the "[f]ield account of [the] present offense [;]

impulsive behavior exhibited in the offense[.]" This was the fourth time his

request to reduce his custody status to "full minimum" was denied.

      Appellant submitted an Inmate Inquiry on June 15, noting his charges did

not prevent "further reduce[d] custody status." He argued the ICC's decision

was "unsupported by the facts pertaining to [his] institutional record . . . ."

      Respondent, Department of Corrections (Department), responded the

denial of full minimum status based on impulsive behavior and the field account

of appellant's offenses was "supported by Central Office."          The ICC was

permitted, at its discretion, to consider the factors in N.J.A.C. 10A:9-4.9, which

included the criminal history, record of incarceration or any other factors

relevant to successful placement.



3
  An inmate who is classified in gang minimum custody "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." N.J.A.C. 10A:9-4.3(d).
4
  An inmate who is assigned to full minimum custody status can be 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 unit." N.J.A.C. 10A:9-4.3(e).
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      In his June 29, 2018 Inmate Grievance, appellant contested the ICC

decision that the present offense showed impulsive behavior. He argued this

was unfounded and contrary to regulations because disciplinary infractions more

than five years old could not be considered by the ICC. He claimed the ICC

decision was arbitrary and capricious because he had no disciplinary infractions

for the past nine years. The Department responded on July 2, 2018, that an

inmate had no right to reduced custody under its regulations and it could take

into consideration all relevant factors.

      Appellant's appeal was denied at the institutional level on July 5, 2018.

Appellant was advised he could appeal to the Central Office. He filed a notice

of appeal with this court, appealing the July 5, 2018 decision. 5

      On appeal, appellant raises the following issues:

            POINT 1: THE DECISION TO CHARACTERIZE
            NGOMBE      WAJAGGA'S    INSTITUTIONAL
            ADJUSTMENT AS DISPLAYING IMPULSIVE
            BEHAVIOR WAS ARBITRARY AND CAPRICIOUS
            AND THEREFORE MUST BE REVERSED.


5
  There is no indication appellant appealed to the "Central Office." Because the
Department has not argued appellant failed to exhaust his administrative
remedies or that the appeal is interlocutory, it has waived these arguments.
Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety,  421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (noting that claims not addressed in merits brief
are deemed abandoned). See Pressler & Verniero, Current N.J. Court Rules,
cmt. 5 on R. 2:6-2 (2019).
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            POINT 2: THE ADMINISTRATOR'S FAILURE TO
            ADDRESS THE MERITS OF MR. WAJAGGA'S
            APPEAL RENDERS THE DECISION ARBITRARY
            AND CAPRICIOUS.

            POINT 3: APPELLANT SHOULD BE GRANTED HIS
            FULL MINIMUM STATUS BECAUSE THE
            EVIDENCE IN THE RECORD IS CONTRARY TO
            THE COMMITTEE'S ASSERTIONS AND OPINIONS
            MAKING THE DECISION TO DENY HIM STATUS
            ARBITRARY,         CAPRICIOUS       AND
            UNREASONABLE.

                                     II.

      Review of an administrative agency's final decision is limited. Kadonsky

v. Lee,  452 N.J. Super. 198, 201-02 (App. Div. 2017) (citing In re Stallworth,

 208 N.J. 182, 194 (2011)). "We will not reverse an agency's judgment unless

we find the decision to be 'arbitrary, capricious, or unreasonable, or [] not

supported by substantial credible evidence in the record as a whole.'" Id. at 202

(alteration in original) (quoting Stallworth,  208 N.J. at 194). We "defer to the

specialized or technical expertise of the agency charged with administration of

a regulatory system." K.K. v. Div. of Med. Assistance & Health Servs.,  453 N.J. Super. 157, 160 (App. Div. 2018) (quoting In re Virtua-West Jersey Hosp.,

 194 N.J. 413, 422 (2008)). We have noted that the Legislature has provided for

the broad exercise of the Department's discretion in all matters regarding the



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administration of a prison facility. Russo v. N.J. Dep't of Corr.,  324 N.J. Super.
 576, 583 (App. Div. 1999).

      The "[c]lassification of prisoners and the decision as to what privileges

they will receive rests solely within the discretion of the Commissioner of the

Department of Corrections." Smith v. N.J. Dep't of Corr.,  346 N.J. Super. 24,

30 (App. Div. 2001). An inmate has no liberty interest in a particular custody

level. See Hluchan v. Fauver,  480 F. Supp. 103, 108 (D.N.J. 1979). However,

the Department'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, 247 (1987).

      Under the Department's regulations, "[c]hanges in inmate custody status

within a particular correctional facility shall be made by the [ICC]." N.J.A.C.

10A:9-4.4(a). The ICC applies criteria set forth in the regulations and the

"objective classification instrument score . . . to determine whether an inmate is

eligible for reduced custody consideration." N.J.A.C. 10A:9-4.1(b).

      In considering whether to reduce an inmate's custody status, the ICC "shall

take into consideration all relevant factors." N.J.A.C. 10A:9-4.5(a).       These


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include the field account of the present offense, prior criminal record, previous

incarcerations, correctional facility adjustment, residential community program

adjustment, the objective classification score, reports from professional and

custody staff, whether the conviction resulted in a life sentence and "[a]ny

reason which, in the opinion of the Administrator and the [ICC], relates to the

best interests of the inmate or the safe, orderly operation of the correction

facility or the safety of the community or public at large." N.J.A.C. 10A:9-

4.5(a)(1) to (9). The ICC is not compelled by these regulatory criteria to reduce

an inmate's custody status. N.J.A.C. 10A:9-4.5(c).

      In Smith,  346 N.J. Super. at 27, the inmate was transferred from one

institution to another because of a "keep separate" order in his file. He had been

classified at full minimum custody status before his transfer, but at the new

institution, the ICC placed him in gang minimum custody status. Id. at 27-28.

The administrator of the facility reviewed the ICC's determination, concluding

that the inmate did not qualify for full minimum custody status. Id. at 28. We

affirmed the decision but clarified that the administrator and the ICC must take

into consideration all the factors regarding petitioner's status in making its

classification decision. Id. at 32. "Neither the nature of an inmate's conviction,

except for those offenses specifically excluded for eligibility in N.J.A.C . 10A:9-


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4.8, nor the location of a correctional facility within a residential area alone,

may permanently disqualify an inmate from consideration for 'full minimum

custody status.'" Ibid.

      In this case, the decision to deny full minimum was not based on

appellant's institutional record as he mistakenly asserts. The cited reason was

"[f]ield account of present offense[;] impulsive behavior exhibited in the

offense[.]" This referenced the offenses for which he was convicted. It was

within the ICC's discretion to consider this in determining the appropriate

custody status. There is no evidence the ICC failed to consider all the other

factors under the regulations. Although as in Smith,  346 N.J. Super. at 32, the

nature of an inmate's conviction may not permanently disqualify him from

consideration of full minimum status, there is no evidence this was the case here,

particularly given the unanimity of the ICC's decision. Appellant cites to his

objective classification score as support for his argument he should have full

minimum custody status, but that score was only part of the factors to be

considered in determining custody status.        The record does not support

appellant's claim there was an abuse of discretion in denying his application for

a lower custody status. The higher level of custody provided a higher level of

supervision while he remains on the grounds of the facility.


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Affirmed.




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