On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
Quddoos Farra'd is a prisoner in the custody of the New Jersey Department of Corrections (DOC) at East Jersey State Prison (EJSP) in Rahway, New Jersey. He appeals the DOC's denial of his request for a reduced custody status, arguing that merged counts should not be considered as separate convictions to bar such consideration.*fn2 We agree with this argument and remand for reconsideration of Farra'd's custody status.
After a jury trial appellant was convicted on April 22, 1997, of all ten counts in an indictment charging him with second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(4) (count one); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count two and count three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), downgraded by the jury to the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a)(1) (count four); third-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1(b)(2) (count five); fourth-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1(b)(3) (count six); attempted criminal coercion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-5(a)(7) (count seven); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count eight); third-degree possession of a weapon, N.J.S.A. 2C:39-4(d) (count nine); and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d) (count ten). Initially on September 23, 1997, the trial court sentenced Farra'd on each count separately. Following a hearing on our excessive sentencing calendar, in an order dated May 24, 2007, we remanded the matter to the trial court for "consideration of merger issues." An amended judgment of conviction was signed on September 12, 2007, which merged counts two, three, eight, nine and ten into count one. Counts four and six merged into count five. The State dismissed count seven. The trial court sentenced Farra'd to twenty years with a ten-year period of parole ineligibility on count one and to a consecutive sentence of five years with a two and one-half year period of parole ineligibility on count five.
On July 22, 2009, Farra'd asked the EJSP Classification Committee (Committee) for the reduced custody status of "gang minimum." N.J.A.C. 10A:9-4.3(d).*fn3 A DOC psychological report determined that Farra'd was a suitable candidate for "gang minimum" if he was otherwise eligible. The Committee denied the request and determined that Farra'd had an E-1 override that barred him from obtaining a custody status lower than "medium." The Administrative Code sections relevant for this appeal are N.J.A.C. 10A:9-2.14, Override Code Reference Index, and N.J.A.C. 10A:9-4.7, Eligibility Criteria for Reduced Custody Consideration. N.J.A.C. 10A:9-2.14, in pertinent part, provides:
(a) In accordance with the description of the override code, when an inmate cannot be assigned to the recommended custody status indicated by the custody status score on the Initial or Reclassification Instruments, the appropriate override code shall be applied and any specific information concerning the reason for the override shall be documented and maintained in the inmate record.
5. Code E-1: Permanent custody prohibition/bar. Medium custody status assignment or above only due to sexual or arson offense convictions pursuant to N.J.A.C. 10A:9-4.7.
N.J.A.C. 10A:9-4.7(c),*fn4 in pertinent part, prior to listing sexual crimes, provides:
An inmate who has two or more convictions, either present, prior, or a combination of present and prior for the offenses listed below, or attempts or conspiracies to commit these offenses (see N.J.S.A. 2C:5-1 and 5-2) under the laws of this State, or any comparable offenses from any other state or the United States, is not eligible for reduced custody.
Thus, an E-1 override, preventing "gang minimum" status, applies to an inmate who is serving a sentence for more than one conviction of a sexual offense.
Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). We will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982). Although we give great deference to administrative decisions, State v. Johnson, 42 N.J. 146, 159 (1964), we do not simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the ...