KIMBERLY GREEN VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2507-15T2
KIMBERLY GREEN,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent.
_________________________________________
Submitted June 6, 2017 – Decided September 1, 2017
Before Judges Fisher and Leone.
On appeal from the New Jersey Department of
Corrections.
Kimberly Green, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Randy
Miller, Deputy Attorney General, on the
brief).
PER CURIAM
Inmate Kimberly Green appeals the January 19, 2016 denial of
community release by respondent New Jersey Department of
Corrections (DOC). We affirm.
I.
Green was sentenced to twelve years in prison for vehicular
homicide pursuant to N.J.S.A. 2C:11-5 and two assault by auto
offenses pursuant to N.J.S.A. 2C:12-1(c).
Green was serving her sentence at the Edna Mahan Correctional
Facility (EMCF). On August 20, 2015, she was transferred to Bo
Robinson Assessment and Treatment Center for the Residential
Community Release Program (RCRP). A week later, she was
administratively returned to EMCF at the request of the Office of
Community Programs (OCP). On December 8, 2015, she again applied
for the RCRP. On December 30, 2015, her application was approved
by the Institutional Classification Committee (ICC), contingent
upon her meeting the eligibility requirements. She was transferred
to Bo Robinson again. On January 19, 2016, however, she was again
administratively returned to EMCF, as community release was again
denied by OCP. A week later, the Director of OCP wrote Green's
lawyer that Green had been informed of her denial for community
release "based on professional reports."
In June 2016, we granted DOC's motion to remand, and returned
jurisdiction. DOC attached "the final agency decision," namely a
July 5, 2016 letter from the Director to Green. Referencing
inquiries by Green's attorney, and the January 27, 2016 letter the
Director wrote that Green had been returned from RCRP "for further
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evaluation by this office, pursuant to [N.J.A.C.] 10A:20-4.12,"
stating:
After a review of numerous factors which
included the present offense; pre-sentence
investigations; participation in relevant
programming; psychological and psychiatric
evaluation; and other professional and
administrative reports, you were denied
participation by the Residential Community
Program Notification Committee.
The Director said Green could reapply for participation in the
RCRP.
Green argues the following on appeal:
Point I - Green's approval for Community
Release, administrative move back to EMCF, and
ultimate denial of community release was
arbitrary, capricious and unreasonable and
should be reversed.
Point II - Appellant's Due Process Rights were
violated per [N.J.S.A.] 30:4-91.8 and Title
10A, Chapter 20, subchapter 4 of the
Administrative Code when returning Green from
Bo Robinson and without giving sufficient or
proper notification of her denial of community
release.
II.
"Appellate courts have 'a limited role' in the review of
[DOC] decisions." In re Stallworth, 208 N.J. 182, 194 (2011)
(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)).
"An appellate court affords a 'strong presumption of
reasonableness' to an administrative agency's exercise of its
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statutorily delegated responsibilities." Lavezzi v. State, 219
N.J. 163, 171 (2014) (citation omitted). "In order to reverse an
agency's judgment, an appellate court must find the agency's
decision to be 'arbitrary, capricious, or unreasonable, or . . .
not supported by substantial credible evidence in the record as a
whole.'" Stallworth, supra, 208 N.J. at 194 (quoting Henry, supra,81 N.J. at 579-80). We must hew to that standard of review.
III.
Green argues DOC violated N.J.S.A. 30:4-91.8 and N.J.A.C.
10A:20-4.8(d). Neither the statute nor the regulation provides
her with relief.
Pursuant to N.J.S.A. 30:4-91.8(a) and (b)(2), if an inmate
convicted of vehicular homicide or other specified crimes "is
subject to a review by an Institutional Classification Committee
which may result in participation in any residential community
release program, the Department of Corrections shall provide
written notice of that review" to the prosecuting agency, and that
agency and "the victim or the victim's nearest relative" may submit
comments which the DOC must consider. This statute does not give
any rights to inmates, let alone require any particular disclosure
by DOC to the inmate.
N.J.A.C. 10A:20-4.8(d) provides: "If the inmate does not meet
the eligibility criteria, the inmate shall be notified of the
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reason(s), in writing, by the Institutional Community Release
Program Coordinator." However, Green and DOC agree she met the
criteria for community release.1
In her reply brief, Green cites N.J.A.C. 10A:20-4.42(b),
which provides: "In cases when an inmate is being returned [from
a residential community program] to the correctional facility for
administrative reasons, the director or designee shall prepare a
report using Form CA:44.2b Disciplinary/Administrative Discharge
Summary, which indicates the reasons(s) for the return." However,
N.J.A.C. 10A:20-4.42(c) provides:
A copy of the report shall be given to the
custody staff member(s) who is transporting
the inmate, and a copy shall be faxed as soon
as possible to the Office of Community
Programs. The report shall include the
following information:
1. The detailed reasons for the return of
the inmate; and
2. A summary of the inmate's overall
attitude and adjustment while in the
residential community program.
1
Even if an inmate meets such criteria, community release may be
denied. "If the inmate meets the eligibility criteria," the
application may still be submitted "to the [ICC] for review and
approval or disapproval." N.J.A.C. 10A:20-4.8(e). Moreover,
inmates sentenced to state correctional institutions "may be
reviewed for eligibility by the Director" of OCP and "may be
approved or disapproved by the Institutional Classification
Reception Committee." N.J.A.C. 10A:20-4.8(f).
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Nothing in N.J.A.C. 10A:20-4.42 or Form CA:44.2b indicates
that a copy of this report, and the reasons therein, is to be
given to the inmate. Rather, it appears to be a transmittal
document informing the receiving correctional institution why the
inmate is being returned and how the inmate performed in the
community program.
If N.J.A.C. 10A:20-4.42 requires that the inmate receive a
copy of Form CA:44.2b and its reasons for return, we note this
report was prepared for the August 27, 2015 return, but there is
no indication that such a report was prepared following the January
19, 2016 return. Rather, Green was only given notice that
community release was denied by OCP.
We need not rule on the sufficiency of this notice, that the
denial was by OCP, or the January 27, 2016 notice that the denial
was "based on professional reports." After our remand, the
Director of OCP listed some of the "numerous factors" on which the
OCP relied, including Green's "offense; pre-sentence
investigations; participation in relevant programming;
psychological and psychiatric investigation; and other
professional and administrative reports." Each of those factors
is encompassed by appropriate factors under N.J.A.C. 10A:9-3.3(a).
See Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 33 (App.
Div. 2001).
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Green also claims her due process rights were violated.
However, "'halfway house placement does not involve a liberty
interest giving rise to due process rights.'" Shabazz v. N.J.
Dep't of Corr., 385 N.J. Super. 117, 124 (App. Div. 2006) (citation
omitted). Thus, Green "had no constitutionally protected liberty
interest in remaining there." Ibid."A state may create a liberty interest protectable by the due
process clause through its enactment of certain statutory or
regulatory measures." White v. Fauver, 219 N.J. Super. 170, 179
(App. Div. 1987). "However, if the decision maker is not required
to base its decision on objective and defined criteria, but instead
can deny the requested relief for any constitutionally permissible
reason or for no reason at all, the State has not created a
constitutionally protected liberty interest." Ibid. Here,
neither N.J.A.C. 10A:20-4.42(b) nor Form CA:44.2b requires that
the Director base the decision to return an inmate on any objective
or defined criteria.
Although the notice provided on remand did not state how the
cited N.J.A.C. 10A:9-3.3 factors favored return, we cannot say the
Director's decision was arbitrary, capricious, or unreasonable.
"[A] reduction in custody status is a matter of privilege, not of
right." Smith, supra, 346 N.J. Super. at 30.
Affirmed.
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