NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5490-11T3

W.B.,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

Submitted October 1, 2013 – Decided

Before Judges Espinosa, Koblitz and 

O'Connor.

On appeal from the New Jersey Department of 

Corrections.

W.B., appellant pro se.

John J. Hoffman, Acting Attorney General, 

attorney for respondent (Lisa A. Puglisi, 

Assistant Attorney General, of counsel; 

Justin L. Conforti, Deputy Attorney General, 

on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

In Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176 

(App. Div. 2011), we considered whether the Commissioner's broad 

authority to select the appropriate institution to house 

APPROVED FOR PUBLICATION

January 29, 2014

APPELLATE DIVISION

January 29, 2014
2 A-5490-11T3

inmates, N.J.S.A. 30:4-91.2, is limited by the Sex Offender Act 

(SOA), N.J.S.A. 2C:47-1 to -10. In deciding the appeal of an 

inmate who challenged his transfer from the general prison 

population to the Adult Diagnostic Treatment Center (ADTC), we 

concluded that the Commissioner of the Department of Corrections 

(DOC) lacked the discretion to transfer inmates to the ADTC who 

did not meet the sentencing parameters of the SOA. Williams, 

supra, 423 N.J. Super. at 186. W.B.'s appeal entails a 

different challenge to the authority of the Commissioner 

regarding assignment to the ADTC. Convicted as a sex offender 

in New Hampshire, his custody was transferred to New Jersey 

pursuant to the Interstate Corrections Compact (the Compact), 

N.J.S.A. 30:7C-1 to -12;

1 N.H. Rev. Stat. Ann. §§ 622-B:1 to -B:3 

(2013), where he was assigned to the ADTC. Following Williams, 

however, he was reassigned to a wing for inmates who were not 

sentenced under the SOA and appealed that decision, arguing that 

the Compact required that he be treated as an ADTC-eligible 

offender. For the reasons that follow, we affirm.

 

1 As codified, the Compact "empowers New Jersey to enter into 

contracts with other states 'for the confinement of inmates on 

behalf of a sending state in institutions situated within 

receiving states.'" Van Wickle v. N.J. Dep't of Corr., 370 N.J. 

Super. 40, 45 (App. Div. 2004) (quoting N.J.S.A. 30:7C-4(a)).
3 A-5490-11T3

I.

In April 2009, W.B. pled guilty to aggravated felonious 

sexual assault of a victim under the age of thirteen, and 

aggravated felonious sexual assault, N.H. Rev. Stat. Ann. § 632-

A:2(II), for offenses committed against his granddaughter and 

his daughter. He was sentenced to an aggregate prison term of 

five to fifteen years and ordered to "participate meaningfully 

and complete any counseling, treatment and educational programs 

as directed by the correctional authority or Probation/Parole 

Officer." The New Hampshire Department of Corrections Initial 

Assessment Recommendations & Pre-release Plan Authorization Form

referred W.B. to the Sex Offender Treatment Program and included

the recommendation that W.B. needed "Sex Offender Evaluation & 

Treatment as Directed," "Substance Abuse Eval. & Treatment as 

Directed," and "Self-Help" as recommended by the court or the 

New Hampshire Department of Corrections.

Due to a potential conflict of interest involving the 

director of the New Hampshire Sex Offender Treatment Program, 

New Hampshire's Deputy Compact Administrator made a request to 

New Jersey to house W.B. pursuant to the Compact, noting that

W.B. "needs Sex Offender Treatment and we are requesting that he 

do it while housed at your facility." The DOC approved the 

transfer.
4 A-5490-11T3

W.B. was transferred to the custody of the DOC on January 

13, 2010, and assigned to the ADTC. The ADTC is defined as "the 

correctional facility designated to house persons who have been 

sentenced pursuant to N.J.S.A. 2C:47-1 et seq. and 2A:164-1 et 

seq.," N.J.A.C. 10A:1-2.2, and includes a Therapeutic Community 

for sex offenders who have been found clinically eligible for 

the specific treatment program under the SOA. W.B. was placed 

in the Therapeutic Community with sex offenders found clinically 

eligible under the SOA. However, because W.B. was sentenced 

under New Hampshire's sex offender statute and not under the 

SOA, he was classified as a Not Under the Act (NUA) inmate. DOC 

has defined that term as one who is "not eligible for 

specialized treatment under N.J.S.A. 2C:47-3(h)." See Williams,

supra, 423 N.J. Super. at 180.

Treatment updates for W.B. dated September 24, 2010, 

February 3, 2011, July 7, 2011, January 25, 2012, and October 

23, 2012, which include updates before and after our decision in 

Williams, uniformly begin with a statement noting W.B. was not 

sentenced under the SOA "and therefore is not mandated to 

participate in the sex offender treatment program at the ADTC." 

Despite the lack of a mandate, W.B. voluntarily and actively 

participated in the One Wing Therapeutic Community, which was 

described as "the most intense level of treatment offered." His 
5 A-5490-11T3

progress in therapy was duly noted and, in February 2011, it was 

recommended that he advance from a Level III group to Phase II 

status.

Williams was decided in December 2011. In addition to 

holding that the Commissioner lacked authority to assign NUA 

inmates to the ADTC for treatment and housing with ADTC-eligible 

inmates, Williams, supra, 423 N.J. Super. at 189, we ordered the 

Commissioner to review the status of NUA inmates at the ADTC and 

"take the steps necessary to ensure that only ADTC-eligible 

offenders are incarcerated there, unless it is administratively 

feasible to establish a separate program" for the non-ADTCeligible inmates at the ADTC. Ibid.

W.B. remained in the ADTC Therapeutic Community until April 

4, 2012, when he was moved from a wing housing ADTC-sentenced 

inmates participating in the Therapeutic Community, and 

reassigned to a wing designated for NUA inmates. W.B. requested 

that a psychological examination be conducted of him so that his 

eligibility for sex-offender-specific treatment in the 

Therapeutic Community might be reconsidered. His request was 

denied on the ground that the requisite testing "could only be 

completed in response to a court order or as a courtesy to the 

[DOC], should they request it."
6 A-5490-11T3

In May 2012, W.B. filed an Inmate Remedy System Form, 

challenging DOC's decision to classify him as an NUA inmate. He 

stated, 

Under the Interstate Compact, I am to be 

treated as if I had committed my offense in 

New Jersey. I am supposed to be 

participating in the same education and work 

programs as ADTC-sentenced inmates. It is 

the responsibility of the ADTC 

Administration to make available treatment 

programs consistent with my individual 

needs, as well as to ensure that my 

committing court's sentences and orders are 

faithfully executed.

In its response, the ADTC administration stated W.B.'s 

"assertion that the Compact is being violated is unfounded," 

that his "current housing is appropriate," and that he would be 

housed as NUA.2 The administration suggested that W.B. could 

write to the Interstate Services at the Central Office regarding

the provisions of the Compact.

The treatment update dated October 23, 2012 reported that, 

after W.B. was reassigned to a group for NUA inmates in April 

2012, he participated in sex offender treatment. The update 

provided a review of that treatment for the period from June 25 

 

2 W.B. submitted a similar complaint by another inmate 

transferred to the ADTC under the Compact with a response from 

the ADTC that allegedly contradicted the response to his Inmate 

Remedy System Form. However, conflicting statements within that 

response preclude any determination as to whether the response 

was contradictory.
7 A-5490-11T3

through October 23, 2012, and identified his treatment goals for 

the next six months.

W.B. appealed from the administrator's decision. After 

that decision was upheld, he filed an appeal from the final 

agency decision and presents the following issues for our 

consideration:

POINT I

THE WILLIAMS RULING DID NOT DISCUSS HOW THE 

RULING SHOULD APPLY TO OUT-OF-STATE 

TRANSFERS, AND IS BEING APPLIED IMPROPERLY 

TO TRANSFERRED INMATES.

POINT II

THE DEPARTMENT'S DECISION TO APPLY WILLIAMS

TO OUT-OF-STATE INMATES VIOLATES THE 

INTERSTATE COMPACT.

POINT III

APPELLANT HAS A LIBERTY INTEREST ATTACHED TO 

BEING OFFERED THE SAME SEX OFFENDER 

TREATMENT PROGRAM BEING OFFERED TO NEW 

JERSEY INMATES SENTENCED UNDER THE NEW 

JERSEY SEX OFFENDER ACT.

"The judicial capacity to review administrative agency 

decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 

210 (1997). An appellate court can reverse only if the agency's 

decision was "arbitrary, capricious or unreasonable or it is not 

supported by substantial credible evidence in the record as a 

whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 

(1980); Brady, supra, 152 N.J. at 210. "[I]nterpretations of 
8 A-5490-11T3

the statute and cognate enactments by agencies empowered to 

enforce them are given substantial deference. . . ." Williams, 

supra, 423 N.J. Super. at 182-83; (quoting Klumb v. Bd. of Educ. 

of the Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 

24 (2009)). However, an agency's interpretations "'cannot alter 

the terms of a legislative enactment nor can they frustrate the 

policy embodied in [a] statute.'" Williams, supra, 423 N.J. 

Super. at 183 (alteration in original) (citations omitted). 

Furthermore, "[a]n appellate tribunal is . . . in no way bound 

by the agency's interpretation of a statute or its determination 

of a strictly legal issue." Mayflower Sec. Co. v. Bureau of 

Sec., 64 N.J. 85, 93 (1973); see also Shim v. Rutgers, 191 N.J.

374, 384 (2007).

II.

It is evident that the DOC's decision to move W.B. from the 

wing designated for ADTC inmates was prompted by our decision in 

Williams. Although we did not explicitly address the 

circumstances of an out-of-state sex offender who has been 

transferred to the custody of the DOC, our reasoning for the 

limitations upon the Commissioner's discretion to assign inmates 

to the ADTC remains applicable.

As we observed in Williams, the SOA "created a detailed 

sentencing program for certain types of sex offenders." 423 
9 A-5490-11T3

N.J. Super. at 178. Although we recognized the broad discretion 

and authority of the Commissioner to "designate as a place of 

confinement any available, suitable, and appropriate institution 

or facility" for an inmate and to transfer the inmate "at any 

time," id. at 181, we nonetheless found ourselves "constrained" 

to apply the legislatively mandated restrictions on the 

Commissioner's discretion and authority imposed by the specific 

language of the SOA. The program created by the legislature 

permits the confinement of an offender at the ADTC only if 

specific criteria are met: (1) the offender must be convicted of 

one of the SOA's enumerated offenses; (2) there must be a 

finding, following a psychological examination, that "the 

offender's conduct was characterized by a pattern of repetitive, 

compulsive behavior"; (3) the offender must be both amendable to 

sex offender treatment and willing to participate in such 

treatment; and (4) following review, a judge must confirm the 

requisite findings. N.J.S.A. 2C:47-1; N.J.S.A. 2C:47-3(a).

In In re Civil Commitment of W.X.C., 204 N.J. 179 (2010), 

cert. denied, __ U.S. __, 131 S. Ct. 1702, 179 L. Ed. 2d. 635 

(2011), the Supreme Court compared the scope of the Sexually 

Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38 with 

that of the SOA, noting that the Legislature used "far narrower" 

defining statutory language in the SOA. W.X.C., supra, 204 N.J.
10 A-5490-11T3

at 199. The Court found that, "[a]s defined by statute, ADTC 

treatment . . . is directed only at specific offenders" and 

further, that the treatment "is particularized and is designed 

to meet the needs of the specific population of sex offenders 

that it intentionally targets." Id. at 198. The Court 

described the Legislature's purpose and the practical 

considerations that influenced its reasoning:

[W]hen creating the ADTC, the Legislature 

intentionally designed a program that could 

most effectively target a particular 

population that available treatment 

modalities could benefit. In that context, 

making certain that the offenders admitted 

into the program are only those who meet the 

statute's diagnostic criteria is a critical 

ingredient in the program's success. More 

to the point, the program operates with 

limited numbers of beds, for clinically 

significant reasons, and highly trained, but 

limited, numbers of personnel, with the 

result that it is not appropriate to expand 

it to offenders . . . who do not meet the 

admission criteria. 

[Id. at 199 (emphasis added).]

From the outset, W.B. was identified as an NUA inmate who 

had not been sentenced under the Act. Although W.B. pled guilty 

to offenses comparable to those enumerated in the SOA and has 

manifested his amenability and willingness to participate in sex 

offender treatment at the ADTC, he was not sentenced pursuant to 

the detailed sentencing program that required both a 

psychological determination and judicial confirmation, following 
11 A-5490-11T3

review, that he satisfied the statutory criteria. The 

legislative purpose in limiting ADTC treatment to a carefully 

targeted population of offenders, a "critical ingredient in the 

program's success," ibid., applies equally to a potential 

expansion of the ADTC program to him. As we have noted, the DOC 

has implemented a program of sex offender treatment for NUA 

offenders in which W.B. has participated. Particularly in light 

of our decision in Williams, it was not arbitrary, capricious,

or unreasonable for the Commissioner to classify W.B. as an NUA 

inmate and designate his confinement accordingly. 

III.

We next consider W.B.'s argument that the Compact and the 

Contract for Services between the State of New Hampshire and the 

State of New Jersey for the Implementation of the Interstate 

Corrections Compact (the Contract) both require the DOC to treat 

him as an ADTC-eligible offender. He contends that the failure 

to provide him with treatment provided to ADTC-eligible 

offenders effectively alters his sentence, in violation of the 

Compact. He also argues that the Compact requires New Jersey to 

treat him as if he committed his offenses in New Jersey. We 

disagree with each of these propositions.

N.J.S.A. 30:7C-5(e) provides, in pertinent part, "All 

inmates who may be confined in an institution pursuant to the 
12 A-5490-11T3

provisions of this compact shall be treated in a reasonable and 

humane manner and shall be treated equally with such similar 

inmates of the receiving state as may be confined in the same 

institution." (Emphasis added). Similarly, the Contract

requires the receiving state "to make available to [transferred 

inmates] the programs of training and treatment which are 

consistent with their individual needs." However, Paragraph 12 

of the Contract limits the scope of the obligation, stating, 

Nothing herein contained shall be construed 

to require the receiving state or any of its 

institutions to provide treatment, 

facilities, or programs for any inmate 

confined pursuant to the Interstate 

Corrections Compact which it does not 

provide for similar inmates of the receiving 

state.

The thrust of W.B.'s argument is that the "similar inmates 

of the receiving state" with whom he is on par are the ADTCeligible offenders. As we have noted, although W.B. shares some 

of the attributes of ADTC-eligible offenders, he does not meet 

all the criteria established by the Legislature as prerequisites 

to ADTC status. Therefore, just as the DOC identified him at 

the outset, W.B. is similarly situated to the NUA offenders 

housed separately at the ADTC. We therefore conclude that no 

violation of the Compact has occurred by virtue of a failure to 

treat him equally with similar inmates in New Jersey. 
13 A-5490-11T3

W.B. was sentenced under New Hampshire's statutes, which 

govern "any matter relating to an inmate confined pursuant to" 

the Contract. See also N.J.S.A. 30:7C-5(c). He has identified 

no New Hampshire statute analogous to the SOA in terms of its 

specific and detailed sentencing program that would require New 

Jersey to afford him the treatment explicitly provided to 

offenders who satisfy the SOA criteria. Moreover, the actions 

of the DOC here did not derogate the sentence imposed upon him, 

which ordered him to "participate meaningfully and complete any 

counseling, treatment and educational programs as directed by 

the correctional authority or Probation/Parole Officer." Thus, 

the nature of sex offender treatment W.B. was to receive in New 

Hampshire as part of his sentence was to be determined by the 

correctional authority, not mandated by either a New Hampshire 

statute or the sentence imposed. The New Hampshire Department 

of Corrections referred him to its Sex Offender Treatment 

program. However, W.B. has not identified any recommended 

treatment that has not been provided to him in New Jersey. 

Further, although not dispositive to our analysis, we note 

that the New Hampshire Department of Corrections rebuffed W.B.'s 

complaint that he was being denied treatment due him pursuant to 

the Compact. In a letter to W.B. dated June 27, 2012, the New 
14 A-5490-11T3

Hampshire Department of Corrections Administrator of 

Classification stated: 

It is our understanding that you are still 

being afforded the opportunity to 

participate in Sex Offender Programming. 

That is the word we have received from New 

Jersey. Although you may be housed 

separately due to recent litigation it has 

not affected your ability to continue 

programming. New Jersey is aware that you 

are required by New Hampshire to participate 

and satisfactorily complete Sex Offender 

Programming. They have received all 

pertinent information regarding you and your 

sentence and requirements prior to you going 

there. 

In sum, we are satisfied that the Commissioner's actions 

here did not violate the Compact or the Contract.

IV.

Finally, W.B. argues that the disparity between the 

treatment he receives as an NUA inmate and that afforded ADTCeligible offenders deprives him of a fundamental liberty 

interest and the equal protection of the laws. This argument 

lacks sufficient merit to warrant discussion in a written 

opinion, R. 2:11-3(e)(1)(E).

Affirmed.