On appeal from a Final Agency Decision of the Department of Corrections.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin*fn1, Lefelt and R. B. Coleman.
Appellant, Dionisio Arenas, a convicted sex offender currently incarcerated at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, New Jersey, appeals from a Final Agency Decision of the Department of Corrections (DOC) denying his application for an international transfer to Spain, pursuant to N.J.S.A. 30:7D-1 and N.J.A.C. 10A:10-6.1, et seq. Arenas is a pedophile and a sexual predator of pre-pubescent boys and adult males. On April 8, 1988, Arenas was convicted of two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a; five counts of second degree sexual assault, N.J.S.A. 2C:14-2c; and three counts of fourth degree criminal sexual contact, N.J.S.A. 2C:14-3b. On October 21, 1988, Arenas was sentenced to an aggregate term of forty years, with a twenty-year mandatory minimum period of parole ineligibility. At the time of sentencing, the judge made the following observations:
[Arenas] appeals to a certain type of victim; the confused male [youngster], the kid looking for a man's support and friendship and love. He lures them with guilt and fear. He destroys them with sexual perversity. He covers his tracks with embarrassment and shame. He then goes on with his dastardly scheme.
He cannot be deterred. Fear of apprehension is not present. Concern for the victims is of no moment.
He has learned his skills well. . . . There is nothing that this Court can do to save the victims in this case. There is nothing the Court can do to eliminate male youngsters such as these from being attracted to a person such as this defendant, but the Court is in a position to prevent other youngsters from being his victims.
This defendant is basically beyond rehabilitation or redemption. . . . He should be removed from the public for as long as the law allows. He is and shall always be a clear and present danger to every male youngster he comes in contact with or that he can find.
The maximum period of incarceration permitted by law is necessary coupled with the maximum period of parole ineligibility allowable.
During his incarceration, Arenas was offered sex offender treatment, however, he continually refused to participate in such treatment.
On November 8, 2002, Arenas, who is a Spanish citizen, initiated an application for an international transfer, pursuant to N.J.S.A. 30:7D-1 and N.J.A.C. 10A:10-6.1, et seq., whereby he sought a transfer to Spain to serve out the remainder of his sentence. Arenas's request to be transferred was opposed by the Office of the Prosecutor of Morris County, the Morris Township Police Department, and the Office of the Attorney General.
On August 12, 2003, the Commissioner of the DOC denied Arenas's application for a transfer. On that same date, the Administrator at ADTC informed Arenas of the Commissioner's decision to deny the transfer request until (1) the mandatory minimum term of incarceration is satisfied and (2) there is evidence that Arenas would receive sex offender specific treatment if transferred to Spain. On September 18, 2003, counsel for Arenas wrote to the Commissioner suggesting that the proper criteria appeared not to have been considered and that the Commissioner's decision must have been based on inaccurate information. By letter dated October 14, 2003, the Commissioner responded that he had denied the request in accordance with the Administrative Code and his review of the record and that he would not reconsider his decision until Arenas satisfies the two ...