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D'Agostino v. New Jersey Dep't of Corrections

August 25, 2010

RICHARD L. D'AGOSTINO, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
NASIR H. SHARIEFF, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 3, 2010

Before Judges Graves and Yannotti.

In these consolidated matters, Richard D'Agostino and Nasir Sharieff (appellants) are state prison inmates, serving life sentences for murder. Appellants appeal from a final decision by the Department of Corrections (the Department), denying their request to repeal a department regulation. We affirm.

On October 22, 2008, appellants each prepared an administrative remedy form, requesting that N.J.A.C. 10A:9-4.5 be amended to eliminate subparagraph (a)(8), which authorizes the Institutional Classification Committee (ICC) to consider "[a] conviction for a present or prior offense that resulted in a life sentence" when determining whether to grant a reduced custody status to an inmate. After the Department denied both requests, appellants filed a petition to repeal N.J.A.C. 10A:9- 4.5(a)(8).*fn1 In letters dated May 8, 2009, appellants were advised as follows:

This is in reference to your letter of Petition, dated March 30, 2009, received on April 8, 2009. After review of your petition for rulemaking at N.J.A.C. 10A:9-4.5(a)(8), it has been determined that the Department of Corrections finds it inappropriate to repeal the existing rule and the petition for formal rulemaking is accordingly being denied.

In accordance with N.J.A.C. 1:30-4.2(a)(1), appellants were also provided with the following explanation for the Department's decision:

The petitioners request that the Department amend N.J.A.C. 10A:9-4.5 to repeal existing subparagraph (a)8, which establishes that the I.C.C. shall take into consideration any conviction for present or prior offense that resulted in a life sentence and that such consideration shall be relevant to a decision to reduce an inmate's custody status. The petitioners suggest that this specific factor be "deleted from the Administrative code in [its] entirety" because "this clause is being used to deny 'lifers' full minimum, thereby denying 'lifers' the ability to reach [their] full rehabilitative potential."

N.J.A.C. 10A:9-4.5 establishes relevant factors to be considered by the I.C.C. when making a decision to reduce the custody status of an inmate. The petitioners have suggested the repeal of one specific factor to be considered, namely, a conviction for any offense that resulted in a life sentence in the inmate's present or prior offense history. The Department disagrees that the suggested repeal is appropriate. The intent of the rules provided in N.J.A.C. 10A:9-4.5 is to require that the I.C.C. exercise discretion when making the decision to reduce the custody status of an inmate and that the I.C.C. take into consideration all relevant factors because the reduction in custody status could result in the placement of an eligible inmate in a residential community program. Hence, these factors appropriately include any conviction for a present or prior offense that resulted in a life sentence. Further, except for those offenses excluded by law, these rules are specifically intended to ensure that the nature of an inmate's conviction is fully considered by the I.C.C. and, again, appropriately includes [whether] the inmate has a conviction for a present or prior offense that resulted in a life sentence.

The Department disagrees with the assertion of the petitioners that the consideration of a present or prior offense that resulted in a life sentence " . . . is contrary to the public policy being dis[s]eminated . . . to have all inmates be transitioned, re-assimilated through the use of 'community release.'" "All inmates" are not eligible for reduced custody that could result in placement in a residential community program because, pursuant to N.J.A.C. 10A:9-4.2, a reduction in custody status is a privilege and not a right. Therefore, Department of Corrections administrative staff and committees responsible for such discretion, based upon the listed relevant factors, must exercise sound judgment and extreme care in order to ensure that authorized eligibility for a reduction in custody status exists prior to the placement of inmates in residential community programs while, at the same time, ensuring the safety of the communities in which these programs are located. These rules appropriately balance the need to ensure the safety of the public at large with rules regarding reduced custody status that apply to inmates who have been convicted of an offense resulting in a life sentence.

On appeal to this court, appellants present the following arguments:

POINT I

THE DEPARTMENT OF CORRECTIONS HAS FAILED TO ESTABLISH A RECORD FOR APPEAL WHICH REQUIRES REMAND, IN ORDER FOR THE AGENCY TO RESPOND AND ESTABLISH A RECORD ...


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