July 28, 2011
JOHN ARIAS, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 29, 2011
Before Judges Messano and Waugh.
John Arias, an inmate at the New Jersey State Prison, Trenton, appeals from the December 9, 2009 final decision of the Department of Corrections (DOC) continuing his placement in the Management Control Unit (MCU). He raises the following points on appeal:
NEW EVIDENCE OF APPELLANT'S INNOCENCE WAS NOT ADMITTED, REFERRED AND/OR VERIFIED BY PRISON ADMINISTRATIVE OFFICIALS. THIS IS A VIOLATION OF ADMINISTRATIVE STANDARDS: N.J.C.A. [SIC] 10A:5-2.6, 10A:5-2.10 AND 10A:5-2.11.
PRISON OFFICIALS FAILED TO PROPERLY INVESTIGATE AND VERIFY THE NEW DOCUMENTED EVIDENCE OF APPELLANT'S INNOCENCE, PRESENTED AT HIS MCU HEARINGS. THIS SERIOUS VIOLATION WARRANTS A REVERSAL OF THE PRISON ADMINISTRATIVE DECISION.
PRISON OFFICIALS VIOLATED APPELLANT'S DUE PROCESS RIGHT TO HAVE A FAIR HEARING AND THIS SERIOUS VIOLATION MERITS A REVERSAL OF THE ADMINISTRATIVE DECISION OF DECEMBER 9, 2009.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Arias was convicted in 1992 of murder, kidnapping, armed burglary,
terroristic threats, and two counts each of criminal attempt and
possession of a dangerous weapon for an unlawful purpose.*fn1
He was sentenced to a life term with a 45-year period of
In May 1994, after conducting a confidential investigation, DOC's Special Investigations Division (SID) concluded that Arias planned to escape from custody during a court appearance at which he was attempting to gain visitation privileges with his children. It was further determined that Arias planned to kill the mother of his children in the contact visitation hall. SID also concluded that Arias had an alternative plan that included taking a female civilian DOC employee hostage, and using the employee "as a 'bargaining chip'" to have his children's mother brought to him. SID determined that Arias intended to rape the civilian employee as part of the plan.
Arias was charged with disciplinary infractions N.J.A.C. 10A:4-4.1(a) *.803 and *.007 (attempting to take a hostage), and found guilty. He was referred for placement in the MCU, "a close custody unit to which an inmate may be assigned if the inmate poses a substantial threat to the safety of others; . . . or of interrupting the operation of a State correctional facility." N.J.A.C. 10A:5-1.3.
The MCU Special Classification Committee (the Committee) conducted an initial hearing. It concluded that Arias had been found guilty of committing other disciplinary infractions in addition to the attempted hostage taking. The Committee also considered the serious nature of the crimes for which Arias was convicted. Determining that Arias posed a genuine threat to the orderly operation of the prison, the Committee placed Arias in the MCU. The Committee conducted routine and annual reviews of Arias' placement in the MCU over the ensuing years.*fn2 See N.J.A.C. 10A:5-2.10 and N.J.A.C. 10A:5-2.11.
On November 12, 2009, the Committee conducted a routine and annual review of Arias' placement in the MCU. Arias presented a written statement "indicat[ing] that he ha[d] a 10 page document . . .which [was] previously presented to the [Committee] proving his innocence" of the 1994 hostage taking plan. The Committee noted that "[a]s indicated in [his] January and April, 2009 Routine Reviews [Arias had] not provided sufficient evidence to refute the 1994 institutional infraction for attempting to take a hostage." The Committee further observed that Arias had been "found guilty" of the charge and his "appeal was upheld."
The Committee also considered that Arias had "yet to complete the necessary programs required for consideration of release from the MCU," and "demonstrated . . . inability to successfully congregate with other inmates as [he] w[as] again assigned to Protective Custody within the MCU." The Committee concluded that Arias "continue[d] to pose a threat to the safety and security of any correctional facility." He was continued in "Phase III/Protective Custody."
Arias filed an administrative appeal. On December 9, Administrator Michelle R. Ricci considered Arias' claims that he was not provided with "proper written notice of the scheduled annual and final routine review for 2009"; that the Committee "failed to respond to [his] issues presented at the hearing"; that the Committee "'failed to consider ten . . . substantial documents that [were] evidence of [his] innocence'"; that the Committee "'failed to make a procedural referral for verification of ten . . . documents, violating [his] due process'"; and that the Committee "'misrepresented [his] written statement.'" Ricci concluded that the Committee complied with the governing regulations, Arias "did not provide the committee . . . with any new mitigating evidence indicating that [he] should be released from MCU," and his appeal was "without merit." She upheld the Committee's decision, and this appeal followed.
Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We have noted in the past that the Legislature has provided for the broad exercise of DOC's discretion in all matters regarding the administration of a prison facility, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).
Neither the United States Constitution, nor our Constitution, recognizes a right to a less restrictive custody status. Smith v. N.J. Dep't. of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001) (citing Jenkins v. Fauver, 108 N.J. 239, 249 (1987)). As we further observed:
[U]nder State law, the Commissioner of the Department of Corrections has complete discretion in determining an inmate's place of confinement, N.J.S.A. 30:4-91.2. See Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979) (observing that inmates have no liberty right to be assigned to any particular custody level); . . . . Classification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the Department of Corrections. N.J.S.A. 30:1B-6; N.J.S.A. 30:4-91.1. [Id. (citation and quotations omitted).]
In his first point on appeal, Arias argues that DOC failed to follow three specific regulations by not considering, referring to, or investigating ten documents he submitted to prove his innocence of the 1994 disciplinary charges. The claim is without merit.
The ten documents were submitted on two occasions prior to the December 2009 hearing. As noted above, in its decision, the Committee referred to the submission of the documents at Arias' January and April, 2009 reviews.
DOC followed the regulations Arias cites. N.J.A.C. 10A:5-2.6 provides the general procedures to be used by the Committee at all hearings. N.J.A.C. 10A:5-2.10 defines the procedures for routine reviews. And, N.J.A.C. 10A:5-2.11 sets forth the procedures employed at each annual review of an inmate's placement in the MCU.
Any deviation from N.J.A.C. 10A:5-2.6 was insignificant. It is undisputed that Arias appeared at the hearing with counsel substitute and presented his reasons in support of relocation from the MCU. Our review of the record reveals that DOC fully complied with the procedures for a routine and annual review.
At the annual review, the inmate bears the burden of demonstrating that, among other things, he participated in all required programs. N.J.A.C. 10A:5-2.11(b)(1). Only "[i]f the inmate demonstrates participation and compliance . . . will [the inmate] be considered for release from the M.C.U." N.J.A.C. 10A:5-2.11(c). At that point, "the inmate will be released unless [DOC] can demonstrate through substantial evidence, including behavior, correctional facility adjustment, and disciplinary history that the inmate continues to pose an identifiable threat . . . [o]f interrupting the secure and/or orderly operation of [the] correctional facility. N.J.A.C. 10A:5-2.11(c)(3).
Here, Arias failed to demonstrate participation in the programs required by the Committee in their past reviews. He also continued to commit disciplinary violations while in the MCU. In short, the Committee's conclusion that Arias continued to pose a threat to the safety and security of the facility was based upon substantial evidence and is entitled to our deference.
In his second point, Arias claims that DOC's regulations are inadequate because they fail to provide a mechanism for his alleged "new evidence" to "be investigated." The new evidence included proof that Arias obtained a high school GED in 1996 while in custody in Connecticut on unrelated charges; a copy of the Family Court's 1993 order that temporarily removed custody of his children from their mother in a Title Nine proceeding; DOC documents from 2008 that demonstrated Arias was provided with contact visits in the facility, awarded congregate status, and determined to be of a "[l]ow/[m]oderate" risk level; and two letters from 2008 that Arias forwarded to DOC.
The documents are part of the appellate record. Our independent review fails to reveal that they required any "investigation" or "verification," nor did they call into serious question the underlying disciplinary infraction. Moreover, Arias was found guilty of that infraction in 1994 and the adjudication was upheld on administrative appeal.
In reality, the argument is that these documents contradict the Committee's conclusion that Arias remained a threat to the security of the facility. Because it was based upon substantial evidence, we will not second-guess the Committee's decision. See In re Taylor, 158 N.J. 644, 657 (1999) ("[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result.").
Lastly, Arias contends DOC denied his due process rights to "a fair hearing." He claims that he was not given proper notice of the hearing, the Committee "misrepresented [his] issues," his continued placement in the MCU was "punitive," no paralegal saw him before the hearing, and the Administrator's decision on appeal was untimely because it was not provided within seven days of his appeal. See N.J.A.C. 10A:5-2.7(c) ("The Administrator's decision shall be forwarded to the inmate in writing within seven business days following receipt of the appeal.").
Ricci took longer than seven days to render her decision. To the extent this violated the regulation, it was de minimis and in no way affected the fair resolution of Arias' administrative appeal. The balance of Arias' arguments lack sufficient merit to warrant any further discussion. R. 2:11-3(e)(1)(E).