On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011 - Remanded Resubmitted: February 28, 2011
Before Judges Axelrad and Lihotz.
Following our remand to the New Jersey Department of Corrections (DOC) for reconsideration of appellant's visiting privileges with his mother, Denise LaPlante, we received a memorandum from the DOC Administrator dated February 2, 2011. The Administrator informed us that the visit ban would be upheld. Among the reasons stated were that LaPlante's refused to answer questions or provide information regarding her involvement in the fraudulent business activity when questioned by NJSP-SID during the administrative investigation and since the incident, she has not applied in writing to the Administrator for approval/disapproval of the reinstatement of visit privileges, see N.J.A.C. 10A:18-6.19(b)(7) and N.J.A.C. 10A:18-6.3. The DOC was of the further opinion that the ban of LaPlante's visit privilege did not impact on appellant's ability to maintain community ties with her through letters and phone calls and did not affect his visiting privileges with a significant number of other family members and friends. The DOC advised that LaPlante may take the following steps to resolve the visit ban and have her visit privileges reinstated:
1. Your mother Denise LaPlante, was identified by New Jersey State Prison Special Investigation Division (NJSP S.I.D.) as the corporation registered agent of a fraudulent business. Specifically, you engaged your mother (Denise LaPlante) to participate in an unauthorized business activity that was structured as a fraudulent non-profit corporation. The purpose of this business was to solicit monetary donations that were to be sent to a post office box and would have been used for your own financial gain.
2. During the investigation, Ms. LaPlante was contacted by NJSP-SID for an interview to establish the parameters and the totality of her involvement or actions she had taken. During a subsequent interview, Ms. LaPlante decided not to cooperate, terminated the interview, and refused to answer any further questions or provide information as part of the administrative investigation. As a result, the aspect of Ms. LaPlante's role remains open in this investigation and NJDOC is unable to prove the totality of her involvement in this fraudulent business activity. Subsequently, after Ms. LaPlante's stated refusal to cooperate, her visiting privileges were terminated until an interview could be completed by NJSP-SID to establish her role in your unauthorized activities.
3. Your appeal submitted to the court stated that the previous Administrator, Michelle Ricci overstepped her authority and violated N.J.A.C. 10A:4-5.1(g)(7) which restricts the loss of contact visiting privileges to one year. My review of section 10A:4-5.1(g)(7) reveals that this section was improperly quoted to the courts and should not have been applied to this case. This section of the administrative code (entitled schedule of sanctions for prohibited acts committed at the prison complex) applies to the individuals who have committed and were found guilty of certain asterisk charges in a correctional setting.
In addition, subsection (g)(7) of the aforementioned administrative code refers to the additional administrative actions that may be taken when approved by the Institutional Classification Committee with the recommendation of the Disciplinary Hearing Officer, Administrator or designee. Based on the above mentioned, my review of this case reveals that your visit privileges were not suspended or terminated. Rather, the visit privileges of your mother Denise LaPlante were suspended. Thus, there is no violation of N.J.A.C. 10A:4-5.1(g)(7) as claimed.
We are satisfied the DOC's memorandum demonstrates a meaningful review of appellant's request for resumption of visit privileges with LaPlante. Moreover, the DOC has identified reasonable steps to be taken by LaPlante for reinstatement of her visit privileges. Accordingly, we defer to and affirm the decision of the administrative agency. If LaPlante is dissatisfied with the result of her request to reinstate visiting privileges, appellant can exhaust the remedy process by pursuing an administrative appeal.
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