Goldmann, Leonard and Mountain. The opinion of the court was delivered by Goldmann, P.J.A.D.
On this appeal from a denial of his petition for post-conviction relief defendant again argues, as he did in the County Court, that the denial of his applications for classification as a "minimum security" prisoner constitutes an illegal sentence and, further, that the 3-5 and 1-2 concurrent State Prison sentences imposed for breaking and entering and for larceny were "manifestly" excessive although concededly within statutory limits.
We find no merit whatever in the claim of excessive sentence. Indeed, at the post-conviction hearing defendant said, "I am not saying that the sentence is illegal in any way. The sentence is proper." However, he believed the
sentence burdensome in his case, and his exposition of what he means by this points in the same direction as his claim that he was entitled to minimum security status.
Defendant argues that under N.J.S.A. 30:4-92 the State Prison Classification Committee should have classified him for minimum security employment, and that the court should so classify him and thereby reduce his sentence by 73 1/2 days, constituting the work credits he would have received had he been properly classified. The county judge held that even if that argument had merit, post-conviction relief was not the proper method of testing the administrative action of the prison officials at Rahway where defendant was incarcerated: a person aggrieved by the action of a state administrative agency should seek judicial review in the Appellate Division.
The notice of appeal recites that defendant appeals not only from the County Court's denial of his petition for post-conviction relief but from the administrative determination of the prison authorities denying him minimum security work status. The Attorney General appears solely for the purpose of appropriate response to the latter.
Defendant's appeal from the complained-of administrative action should have been brought in this court in the first instance. R. 2:2-3(a), formerly R.R. 4:88-8(a), provides that appeals may be taken to the Appellate Division as of right to review the final action of any state administrative agency or officer, except where governed by R. 4:74-1 and 8, not here applicable. We overlook defendant's lapse since the matter is now squarely before us for decision.
N.J.S.A. 30:4-92 provides:
The inmates of all correctional and charitable, hospital, relief and training institutions within the jurisdiction of the State Board shall be employed in such productive occupations as are consistent with their health, strength and mental capacity and shall receive such compensation therefor as the State Board shall determine.
Compensation for inmates of correctional institutions may be in the form of cash or remission of time from sentence or both. Such remission from the time of sentence shall not exceed 1 day for each 5
days of productive occupation, but remission granted under this section shall in no way affect deductions for ...