September 23, 2011
GEZIM LITA, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 12, 2011
Before Judges C.L. Miniman and LeWinn.
Gezim Lita, an Albanian national, is an inmate at the South Woods State Prison, serving a ten-year sentence for aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. He appeals from the August 4, 2010 decision of the Department of Corrections (DOC) denying his request to transfer to Albania and serve the balance of his sentence there. We affirm.
Appellant submitted his "transfer inquiry" on June 11, 2009, on a form promulgated by the Office of Interstate Services (OIS) within the DOC. On that form he listed his marital status as "single," stated that his parents lived in Albania, and requested transfer "due to visit[ation] hardship."
On October 22, 2009, the Passaic County Prosecutor sent a letter to the OIS, objecting to appellant's request for the following reasons:
. . . [I]n his psychological evaluation from [prison], it is noted . . . "[appellant] wants to return to Albania so that he can be near his wife and family."
[Appellant's] questionnaire, however . . . [,] lists his marital status as "single." In the attached pre-sentence report . . . it is likewise noted that "[appellant] stated that he is single and denied fathering any children." A review of the attached inmate visitor list reveals that [appellant] has been visited at [the prison] by his mother, father, uncle, nephew and three cousins, as well as four different friends.[*fn1 ] In the attached email . . ., it is even noted that "[appellant] said that his parents fly to the U.S.A. often to visit with him, that is why he wants the transfer."
If [appellant] were incarcerated for a substantially less serious offense, the State would still have significant concerns about [his] credibility, and the validity of his claimed visitation hardship. That said, [appellant] is not a low-level offender. Along with his co-defendants, [appellant] laid in wait for two would-be burglars of his place of employment . . . . After apprehending these men . . ., [appellant] shot and killed both of them. He, his brother and his cousin subsequently dumped the bodies, doused them with gasoline and set them afire - burning both of the victims beyond recognition.
It is only because of the purely circumstantial nature of the proofs in this case that [appellant] received so little punishment for such brutal crimes. [Appellant] has really only begun to serve his sentence, and I have little confidence that he will be required to fully satisfy it if his transfer request is granted.
It appears that appellant did not receive a copy of this letter nor was he informed of its contents.
On August 4, 2010, appellant received a letter, on DOC letterhead, signed by Nina Muse "Administrative Analyst II, Office of Interstate Services," stating:
Pursuant to N.J.A.C. 10A:10-6.7(b), the Commissioner of the [DOC] has denied your request for transfer under the provisions of the International Prisoner Transfer Agreement.
This decision is based upon the careful review of your official record and the nature of comments and objections articulated by the authorities outlined in N.J.A.C. 10A:10-6.6(a).
If applicable, you may re-apply for consideration in two years.
On appeal, appellant asserts that the DOC acted "maliciously" in rejecting his transfer request because: (1) the Commissioner "[i]llegally [a]bdicated" his duty to decide appellant's request; (2) the prosecutor's objections were "not based on any of the N.J.A.C. 10A:10-6.3(a) eligibility requirements and should have been afforded little, if any, weight . . . in rejecting [a]ppellant's [a]pplication"; and (3) his transfer is "[j]ustified on [p]ractical and [h]umanitarian
We recently revisited the question of our standard of
review in these matters and concluded that on an application for international transfer, the [DOC] is required to follow the governing regulations, but the applicant is not entitled to a hearing and the Commissioner's decision may not be overturned unless made with malicious intent or on a constitutionally impermissible basis. [Shimoni v. N.J. Dep't of Corr., 412 N.J. Super. 218, 224 (App. Div. 2010).]
"Malice," as appellant notes, is defined as "the intentional doing of a wrongful act without just cause or excuse." LoBiondo v. Schwartz, 199 N.J. 62, 93-94 (2009) (internal quotation marks omitted). He contends the Commissioner of the DOC acted maliciously by "illegally empower[ing] the [OIS] . . . to approve or disapprove . . . [his] request," and also by "simply accept[ing] on its face the State's objections, none of which speak to [his] eligibility for transfer." We find no merit in these contentions.
Pursuant to N.J.A.C. 10A:10-6.6(a)(1) through (3), the OIS, a division of the DOC, is responsible for investigating an inmate's application for international transfer to ensure that all eligibility requirements listed in N.J.A.C. 10A:10-6.3 are met and that the application and supporting materials are complete and comply with treaty terms. The OIS is required to notify the Attorney General's office, the State Police, county prosecutor, and sentencing court of the transfer request, N.J.A.C. 10A:10-6.6(a)(5), each of whom may submit "objections or other comments" on the request to the OIS. N.J.A.C. 10A:10-6.6(a)(6). If the OIS investigation "determines that the inmate is ineligible, or the application and materials are incomplete or do not comply with the terms of the treaty, the application shall be rejected . . ."; the application is not forwarded to or reviewed by the Commissioner. N.J.A.C. 10A:10-6.6(b).
If, however, the OIS investigation "determines that the inmate is eligible, the application and materials are complete and are in compliance with the terms of the treaty, the application and materials shall be forwarded to the Commissioner, New Jersey Department of Corrections. . . ." N.J.A.C. 10A:10-6.6(c). The Commissioner then "review[s] the inmate's international transfer application and materials to determine the approval or disapproval of the application." N.J.A.C. 10A:10-6.7(a). If the application is disapproved, it is returned to the OIS, which in turn notifies the Attorney General, the State Police and the sentencing judge; the Administrator of the correctional facility is to notify the inmate. N.J.A.C. 10A:10-6.7(c).
Appellant argues that the Commissioner "illegally abdicated his statutorily imposed duty to approve or disapprove of an inmate transfer request" based upon the August 4, 2010 letter signed by an administrative analyst within the OIS notifying him that his application had been denied. Appellant interprets that letter as indicating that his "application was rejected by the [OIS] not because [he] was ineligible for transfer, but rather because it adopted the position" of the prosecutor, who had submitted a letter to the OIS arguing against appellant's transfer.
However, the letter does not state that the OIS rejected appellant's application; rather it states that the Commissioner denied it.*fn2 The letter is signed by an OIS employee because it is the responsibility of that office to notify the necessary parties of the Commissioner's decision. N.J.A.C. 10A:10-6.7(c). There is, thus, no indication that the Commissioner "abdicated" to the OIS his responsibility for deciding whether to approve appellant's application. Rather, the OIS determined that appellant had "satisfied the preliminary eligibility criteria" in N.J.A.C. 10A:10-6.3, Shimoni, supra, 412 N.J. Super. at 222, and then sent the matter to the Commissioner to "decide whether to approve or disapprove the transfer." Ibid.
Nothing in the record supports a conclusion that the Commissioner committed "a wrongful act without just cause or excuse." LoBiondo, supra, 199 N.J. at 93-94. To the contrary, the regulations, which "set forth detailed procedures to be followed by the [DOC], Shimoni, supra, 412 N.J. Super. at 222, were properly followed in this case.
Regarding appellant's second contention, the county prosecutor is clearly entitled, pursuant to regulation, to receive notice of an inmate's transfer request and to submit "objections or other comments" on that request to the OIS. N.J.A.C. 10A:10-6.6(a)(1) and (6). Based on its "investigation," which clearly includes the receipt and consideration of such submissions, the OIS determines whether the inmate is ineligible for transfer or whether to refer the matter to the Commissioner for a final determination. N.J.A.C. 10A:10-6.6(c).
It should be noted that the State objected to appellant's transfer not solely because of the nature of his underlying offense, but also based on its conclusion that appellant lacked credibility with respect to his "hardship" contentions. This conclusion arose from the discrepancy in his statements regarding his marital status, as well as the record of the numerous prison visits by friends and family, including visits by his parents as recently as January 2011.*fn3
Appellant contends that the OIS is "not statutorily empowered to reject [his] application based on the Prosecutor's objection[,]" and must find him eligible for international transfer if the criteria in N.J.A.C. 10A:10-6.3(a) are met. This position, however, ignores the OIS's authority and obligation to conduct an "investigation," which includes input from outside sources such as the county prosecutor. N.J.A.C. 10A:10-6.6(a) and (b). It is, thus, the OIS's responsibility to prepare a full record for the Commissioner's review in rendering the ultimate decision.
Here, the August 4, 2010 letter to appellant clearly stated that the denial of his transfer request was the decision of the DOC Commissioner. The fact that the letter was signed by an OIS employee does not undermine that conclusion. To find otherwise would be to elevate form over substance.
Turning to appellant's final point, while reducing prison overcrowding may be one of the purposes of the statute governing the international transfer of inmates, N.J.S.A. 30:7D-1, Shimoni, supra, 412 N.J. Super. at 222, that goal does not mandate granting every transfer request. Neither that statute nor the governing regulations contain "standards relating to the Commissioner's exercise of the ultimate decision." Ibid. Nonetheless, as noted, we defer to such decisions in the absence of evidence demonstrating "malicious intent or . . . a constitutionally impermissible basis." Id. at 224.
Appellant's "humanitarian" contentions are, once again, based upon factual assertions that are not in the record, such as his language barrier and his "visitation hardship." Pursuant to N.J.A.C. 10A:10-6.3(c), appellant may re-apply for an international transfer "two years from the date of disapproval" of the present request. At such time, appellant may, and should, submit a complete and accurate record of the factors he believes support his request, to the administrative authority empowered to grant it.