May 29, 2008
JOSE E. CESPEDES #314029/369869B, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2008
Before Judges S.L. Reisner and Baxter.
Jose E. Cespedes appeals from a December 27, 2007 decision of the Department of Corrections ("Department" or "Corrections") that issued him a classification score of five and consequently assigned him to medium custody status.*fn1 We affirm.
Cespedes is currently incarcerated at Bayside State Prison where he is serving a ten-year sentence*fn2 for manslaughter that was imposed on January 12, 2001. A few years after Cespedes's incarceration began, the Classification Committee (Committee) at Bayside State Prison reviewed his custody status. As a result, Cespedes was transferred on October 12, 2005, to the Bayside State Prison Farm Unit, which is the minimum custody camp.
On April 3, 2007, officers at the Farm Unit conducted a search of the portion of the sewer plant where Cespedes was assigned to work. During the search, a corrections officer discovered three pills and fifty packs of smoking tobacco. Cespedes was charged with a disciplinary infraction and was adjudicated guilty of the charge on April 17, 2007. The sanction that was imposed included a referral to the Classification Committee to review his custody status.
Because of the infraction, Cespedes's classification score was adjusted pursuant to N.J.A.C. 10A:9-2.3(b)(5), and his score became an eight. A score of eight establishes a presumption of medium custody status. N.J.A.C. 10A:9-2.4(a)(2). Based upon the circumstances of that disciplinary infraction as well as Cespedes's objective classification score, the Committee formally changed Cespedes's classification to medium custody status on April 30, 2007. On May 17, 2007, the Department affirmed the Committee's decision. On June 25, 2007, Cespedes filed his appeal with this court.
In his appeal, Cespedes argues that the Committee impermissibly relied on an expired rule when it calculated his score of eight. On December 13, 2007, we granted Corrections's motion for remand in order to permit Corrections to determine whether the Committee's April 30, 2007 decision would be affected by the new regulations, which were pending final adoption. We ordered that the remand be completed within thirty days and retained jurisdiction.
On December 17, 2007, the Department's proposed classification regulations were adopted and all inmates' classification scores were recalculated using the criteria set forth in the amended regulations.*fn3 On remand, the Committee recalculated Cespedes's score and on December 27, 2007, determined that his objective classification score was reduced to a five. Despite the reduction in Cespedes's score, the Committee required him to remain at medium custody status because the new regulations require that inmates with a score of five and above are to be so placed. N.J.A.C. 10A:9-2.4(a)(2).
On appeal, Cespedes argues that: (1) the objective classification scoring instrument Corrections used in May 2007 violates the requirements of the Administrative Procedure Act; and (2) the Classification Committee abused its discretion and acted arbitrarily and capriciously by ignoring the mandatory language and intent of the New Jersey Administrative Code.
We turn first to Cespedes's argument that Corrections incorrectly relied on a rule exemption when it calculated his custody score in May 2007. We agree with Corrections's argument that because Cespedes's score was recalculated in December 2007 using the new regulations, any determination made by Corrections in May 2007 is moot. A decision is moot and not reviewable on appeal when the prior decision has no practical effect on the existing controversy. Greenfield v. N.J. Dept. of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006). Because the Classification Committee has re-evaluated Cespedes under the new regulations that were adopted on December 17, 2007, the Committee's earlier decision in May 2007 has no bearing on Cespedes's current status. Accordingly, Cespedes's claim that his classification is impermissibly based upon an invalid rule is now moot and we decline to address it. See ibid.
We turn next to Cespedes's second argument in which he claims that the Committee's December 27, 2007 score of five must be set aside because the decision reached was arbitrary and capricious. Before addressing that claim, we pause briefly to explain the criteria the Classification Committee relied upon. The regulations are designed so that the higher the classification score an inmate receives, the more restrictive his custody status becomes. Pursuant to N.J.A.C. 10A:9-2.6(b)(1), Cespedes received six points for the severity of his current offense because he is serving a sentence for manslaughter. Cespedes had no assaultive history, escape history or history of institutional violence within the last five years and accordingly received zero points in these categories. Pursuant to N.J.A.C. 10A:9-2.6(b)(5)(iii), he received zero points for not having received any discipline in the prior six months.*fn4 Pursuant to N.J.A.C. 10A:9-2.13(d)(16), however, Cespedes received three points for committing disciplinary infraction .210, possession of anything not authorized, within the prior twelve months. This was a reference to the disciplinary infraction related to the contraband pills and tobacco.
An inmate's classification score can also be reduced if an inmate is above a certain age. For that reason, Cespedes received minus two points pursuant to N.J.A.C. 10A:9-2.6(b)(7) because he is thirty-nine years of age or older. Pursuant to N.J.A.C. 10A:9-2.6(b)(8)(ii), he received another minus two points for his participation in a prior program. Therefore, his new objective classification score on December 27, 2007, was a five.
Our scope of review is a narrow one, and we review Cespedes's contentions in accordance with that standard. We must affirm unless the agency's decision was arbitrary, unreasonable, unsupported by credible evidence in the record or contrary to law. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
Here, we are satisfied that the Classification Committee's December 27, 2007 score of five was based upon substantial credible evidence in the record. The Committee properly applied the facts in Cespedes's institutional record to the newly-adopted regulations and reached a result that was properly grounded in the evidence. Accordingly, the Committee's assignment of a score of five is entitled to our deference. See ibid. The decision to continue Cespedes in medium custody status is likewise correct in light of N.J.A.C. 10A:9-2.4(a)(2), which authorizes Corrections to assign inmates to medium custody if they have a score of five or higher.
Finally, we note that an inmate such as Cespedes is entitled to a periodic review of his custody status. See Smith v. N.J. Dept. of Corr., 346 N.J. Super. 24, 32 (App. Div. 2001). We note from Corrections's brief that Cespedes was entitled in April 2008 to a review of his custody status. Through the Clerk's Office we determined that such a review did in fact take place in April 2008 and that Cespedes's classification to medium custody remains unchanged. We express no view on the correctness of that decision and refer to it solely to demonstrate that periodic reviews are being conducted. Cespedes is free, should he choose to do so, to file an appeal from any such determination.