On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges A. A. Rodríguez and Collester.
Appellant Mark Picozzi is an inmate in the New Jersey State Prison system serving a term of thirty years with fifteen years parole ineligibility for his 1991 convictions for kidnapping, robbery and parole violations. In August 2006, Picozzi was incarcerated at Mid-State Correctional Facility (MSCF) and was assigned full minimum (FM) custody status. Inmates so classified are assigned to work details, jobs, or programs outside the main correctional facility with minimal supervision. N.J.A.C. 10A:9-4.3(e). On August 2, 2006, he received two disciplinary charges, *.202, possession or introduction of a weapons, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility.
He was found guilty of the *.202 charge of possession of a weapon by a hearing officer on August 7, 2006. Picozzi appealed to the assistant superintendent of the MSCF, and on August 14, 2006, the charge was rescinded because of "substantial doubt as to the inmate's guilt."
Following that determination, Picozzi was administratively transferred to East Jersey State Prison (EJSP), and his custody status within that institution was changed to gang minimum (GM), a more restrictive status whereby an inmate may be assigned to activities or jobs outside the correctional facility but under continuous supervision of a correctional officer. N.J.A.C. 10A:9-4.3(d). On August 31, 2006, Picozzi appeared before the classification committee of the EJSP for review and was advised that although he had transferred from MSCF where he had FM status, he was ineligible for FM at EJSP. On September 5, 2006, his request was granted for an institutional transfer to South Woods State Prison (SWSP) with continued GM status. Following an initial institutional classification of Picozzi by the SWSP classification committee, he was advised that he would not be given FM status until receipt of a psychological evaluation. That evaluation took place on November 17, 2006. The report concluded as follows:
Inmate appears to be psychologically appropriate for FM, GM at this time. He does not appear to be psychologically appropriate for CR [community release]. His hx of instrumental aggression places him at high risk to re-offend another violent crime.
Picozzi was advised by letter on December 1, 2006, that he was denied FM status and maintained on GM status.
Picozzi asserts that while at MSCF he earned FM status and had been approved for placement at a half-way house with his maximum parole release date fixed in 2008 and that FM status is a prerequisite for obtaining community custody status, which authorizes inmate participation in residential community programs or community-based jobs. N.J.A.C. 10A:20. He claims that the decision to reduce his FM status to GM was retaliatory because he had been found not guilty by the assistant superintendent of the disciplinary charge and that the improper classification followed him as he was transferred to other institutions within the State penal system. At present Picozzi is confined at MSCF with GM status. He argues that the DOC has continued to classify him with the GM status rather than FM because of a "pattern of retaliation." He submits that since he was previously granted FM status, he should maintain this status absent any violation of institutional rules or misconduct.
The DOC commissioner has total discretion in determining an inmate's place of confinement. N.J.S.A. 30:4-91.2. Moreover, classification of prisoners rests within the discretion of the commissioner. N.J.S.A. 30:1B-6; N.J.S.A. 30:4-91.1. An inmate has no liberty interest in any custody level. Smith v. Dep't of Corrections, 346 N.J. Super. 24, 29-30 (App. Div. 2001). A reduction in custody status is a matter of privilege, not of right, and an inmate's custody status may be increased by the superintendent and classification committee based on the best interest of the inmate, the safe operation of the institution and the safety of the public at large. N.J.A.C. 10A:9-4.5(e)(5).
In White v. Fauver, 219 N.J. Super. 170 (App. Div. 1987), the inmate was first classified as maximum custody and later reduced to GM status. However, after another inmate escaped from the institution, a special classification review committee was directed to evaluate inmates assigned to or awaiting minimum custody. As a result, White's custody status was increased to maximum custody. We held that White had no constitutionally protected liberty interest in his GM status and that his change in classification was for cause and not arbitrary. We stated:
A State may create a liberty interest protectable by the due process clause through its enactment of certain statutory or regulatory measures. 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 or for no ...