SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1962-18T4

LEROY MOORE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

Submitted February 3, 2020 – Decided

Before Judges Ostrer and Susswein.

On appeal from the New Jersey Department of 

Corrections.

Leroy Moore, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Jane C. Schuster, Assistant Attorney 

General, of counsel; Christopher C. Josephson, Deputy 

Attorney General, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

March 2, 2020
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Inmate Leroy Moore appeals from the decision of the Department of 

Corrections Office of Community Programs (OCP) denying his release to a 

Residential Community Release Program (RCRP), colloquially known as a halfway house. He contends the decision was arbitrary, capricious, and 

unreasonable, because the decision-makers relied, without adequate 

explanation, on his criminal history. As the Department failed to clearly state 

the reasons for its decision, or to show it weighed the factors its own regulations 

prescribe, we remand for reconsideration.

Moore has been incarcerated continuously since June 2014. He was 

convicted of multiple drug offenses that he committed in 2009, and bail jumping 

committed in 2010. His aggregate term of seventeen years, of which eight had

to be served before parole eligibility, includes a nine-year-term for his most 

serious drug offense, and an eight-year-term for bail jumping. With the benefit 

of jail credits, he became eligible for parole in late 2019, but remains in custody. 

Moore has an extensive prior record of juvenile adjudications and adult 

convictions. The latter include convictions for escape, drugs, theft, resisting 

arrest and obstruction of justice. He is now forty-two years old. 

The Institutional Classification Committee (ICC) approved Moore for full 

minimum status in February 2018. That satisfied a prerequisite for assignment 
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to an RCRP. See N.J.A.C. 10A:9-4.3(f) (stating that "[f]ull minimum custody 

status" is a prerequisite for "community custody status," which is required for 

assignment to an RCRP); N.J.A.C. 10A:20-4.4(a)(1) (stating that candidates for 

an RCRP generally must be classified as full minimum). The ICC thereafter 

approved Moore's application for an RCRP. The administrator of the prison 

where he was housed approved it as well. However, in September 2018, the 

OCP denied Moore's application – as it had done twice previously in 2018. The 

OCP explained, "A review of your program participation, classification file, and 

the nature and details of [your] offense have resulted in this denial." Below that 

statement appeared the words "CRIMINAL HISTORY."

Moore appeals from that last denial. Moore argues that reference to his 

criminal history defies meaningful review because every inmate has one. He 

contends his criminal history, while extensive, does not reflect a propensity for 

violence, except a juvenile adjudication when he was thirteen years old. The 

Department defends its decision, noting that Moore had no liberty interest in 

community placement, and that his adult record of eight Superior Court 

convictions, and fourteen municipal court convictions, justified denial. 

Applying our well-settled standard of review, we will disturb the 

Department's decision only if it is "arbitrary, capricious or unreasonable," or is 
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unsupported "by substantial credible evidence in the record as a whole." Henry 

v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). 

We recognize the Commissioner has "complete discretion" to determine 

an inmate's placement and custody status. Smith v. N.J. Dep't of Corr., 346 N.J. 

Super. 24, 29 (App. Div. 2001) (citing N.J.S.A. 30:4-91.2). Nonetheless, we 

will find an abuse of discretion "when a decision is 'made without a rational 

explanation, inexplicably departed from established policies, or rested on an 

impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 

(2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 

F.2d 1260, 1265 (7th Cir. 1985)). "[I]t is a fundamental of fair play that an 

administrative judgment express a reasoned conclusion . . . [which] requires 

evidence to support it and findings of appropriate definiteness to express it." 

N.J. Bell Tel. Co. v. Commc'ns Workers of Am., 5 N.J. 354, 375 (1950) (internal 

citation omitted).

Meaningful judicial review depends on the agency providing a reasonable 

record, and a statement of its findings, so the reviewing court can understand 

how the agency came to its conclusion. "We cannot accept without question an 

agency's conclusory statements, even when they represent an exercise in agency 

expertise. The agency is obliged . . . to tell us why" it reached a result. Balagun 
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v. N.J. Dep't of Corr., 361 N.J. Super. 199, 202-03 (App. Div. 2003) (internal 

quotation marks and further citations omitted); see also Blyther v. N.J. Dep't of 

Corr., 322 N.J. Super. 56, 63 (App. Div. 1999) (stating that "[n]o matter how 

great a deference we must accord the administrative determination, we have no 

capacity to review the issues at all 'unless there is some kind of reasonable factual 

record developed by the administrative agency and the agency has stated its reasons'

with particularity") (quoting In re Issuance of a Permit, 120 N.J. 164, 173 (1990)).

The Commissioner has circumscribed his discretion over inmate 

placement by adopting regulations that delegate placement decisions to various 

agency officials, subject to prescribed factors. "[A]n administrative agency 

ordinarily must enforce and adhere to, and may not disregard, the regulations it 

has promulgated." Cnty. of Hudson v. N.J. Dep't of Corr., 152 N.J. 60, 70 

(1997). 

With respect to assignment to the RCRP, the agency has adopted an 

extensive regulatory scheme. N.J.A.C. 10A:20-4.10(a) vests an initial decision 

in the ICC, once the Institutional Community Release Program Coordinator 

determines that the inmate has met eligibility criteria, N.J.A.C. 10A:20-4.8(c), 

(e). Eligibility is based on nine identified factors, including achievement of full 

minimum status: 
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(a) Candidates for participation in residential 

community programs shall: 

1. Be classified full minimum by the Institutional 

Classification Committee (I.C.C.) except as set forth in 

N.J.A.C. 10A:9-3 and 4; 

2. Not demonstrate an undue risk to public safety; 

3. Have a psychological evaluation which supports 

placement in a residential community program and 

shall address the inmate's readiness and ability to 

adequately adapt to the pressures and responsibilities of 

living outside the correctional facility. The 

psychological evaluation shall not be more than 12 

months old; 

4. Have received medical and dental certification, in 

accordance with N.J.A.C. 10A:20-4.9, indicating 

medical and dental clearance and that shall not be more 

than twelve months old; 

5. Have made a satisfactory overall correctional 

facility adjustment and be seen as not likely to pose a 

threat to the safety of the community; 

6. Have completed and signed Form 686--I Community 

Program Application for those inmates who are 

interested in participating; 

7. Have had Form 686--I approved by the Institutional

Classification Committee (ICC); 

8. Have been approved by the Residential Community 

Program Notification Committee when notification is 

required pursuant to N.J.S.A. 30:4-91.8; and 
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9. Have been found to be an appropriate candidate for 

participation in a residential community program by the 

Assessment and Treatment Center.

[N.J.A.C. 10A:20-4.4.]

In addition, the regulations establish time frames for eligibility, in view 

of established or anticipated parole dates or eligibility or a "max-out" date, so 

long as the inmate does "not demonstrate an undue risk to public safety," and 

has not committed arson or certain sex offenses. N.J.A.C. 10A:20-4.5. 

The ICC shall also consider a medical, dental and psychological review 

of the applicant. N.J.A.C. 10A:20-4.9. The ICC then determines whether to 

approve the inmate's application, based on the "eligibility criteria" in N.J.A.C. 

10A:20-4.4, which we have already quoted; any record of parole violations or 

prior failures in an RCRP; and the "decisionmaking criteria" in N.J.A.C. 10A:9-

3.3. N.J.A.C. 10A:20-4.10. The twenty-two prescribed criteria in N.J.A.C. 

10A:9-3.3 apply to any decision on custody status: 

(a) Decisions on transfers and assignments to housing; 

work, educational, vocational, or treatment programs; 

custody status; and residential community programs 

shall be made after consideration of the following 

factors: 

1. The objective classification scoring results 

(excluding inmates committed to A.D.T.C.); 

2. Needs and interests expressed by inmate; 
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3. Age; 

4. Family status; 

5. Social contacts with family and friends; 

6. Correctional facility adjustment; 

7. Residential community program adjustment; 

8. Educational history and needs; 

9. Vocational history and needs; 

10. Military history; 

11. Nature and circumstance of present offense; 

12. Prior offense record; 

13. Records from previous confinement; 

14. Detainers on file or pending; 

15. Substance dependency and/or involvement; 

16. Sexual adjustment; 

17. History of escape, attempted escape or propensity 

for escape; 

18. Current psychological and/or psychiatric reports; 

19. Medical history and recommendations; 

20. Arson history; 
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21. A conviction for any offense that resulted in a life 

sentence when one or more of the following 

aggravating circumstances are in the inmate's present 

or prior offense history (see N.J.S.A. 2C:44-1a.) 

i. Grave or serious harm inflicted on a 

victim, including whether or not the 

offender knew or reasonably should have 

known that the victim was particularly 

vulnerable or incapable of resistance due to 

advanced age, ill health, or extreme youth, 

or for any other reason, the victim was 

substantially incapable of exercising 

normal physical or mental power of 

resistance; 

ii. A substantial likelihood that the 

offender was involved in organized 

criminal activity; 

iii. The offender committed the present 

offense pursuant to an agreement that he or 

she either pay or be paid for the 

commission of the offense and the 

financial incentive was beyond that 

inherent in the offense itself; 

iv. The offender committed the offense 

against a police or other law enforcement 

officer, correctional employee or fireman, 

acting in the performance of his or her 

duties while in uniform or exhibiting 

evidence of his or her authority and/or the 

offender committed the offense because of 

the status of the victim as a public servant; 

22. Needs of the correctional facility; and/or 
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23. Any other factor pertinent to the inmate's case.

[N.J.A.C. 10A:9-3.3.]

Furthermore, in considering a custody status change, the ICC must consider 

"all relevant factors," which "may include, but are not limited to" the following:

1. Field account of the present offense;

2. Prior criminal record;

3. Previous incarcerations;

4. Correctional facility adjustment;

5. Residential community program adjustment;

6. The objective classification score;

7. Reports from professional and custody staff;

8. A conviction for a present or prior offense that 

resulted in a life sentence; and

9. Any reason which, in the opinion of the 

Administrator and the I.C.C., relates to the best 

interests of the inmate or the safe, orderly operation of 

the correctional facility or the safety of the community 

or public at large.

[N.J.A.C. 10A:9-4.5(a).]

A prison administrator may overrule the ICC's approval "when the 

Administrator has information which was not available to the I.C.C. when the 

. . . application was approved." N.J.A.C. 10A:20-4.10(c). However, an 
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administrator may not overrule the ICC's disapproval of an application. 

N.J.A.C. 10A:20-4.10(b). 

The regulations do not expressly empower the OCP to override the ICC 

decision to place an inmate in an RCRP. However, the Commissioner or his or 

her designee retains the power to decide that an inmate is not suited for 

community placement. The regulation states, "Candidates are eligible for 

participation in a residential community program when the candidate: 1. Is 

otherwise eligible . . . and is determined by the Commissioner or designee to be 

appropriate for participation in a residential community program." N.J.A.C. 

10A:20-4.5(b)(1). 

We take judicial notice that the Commissioner adopted a rule exemption

in March 2019. See N.J.R.E. 202(b); N.J.R.E. 201(a). The rule exemption states 

that the "additional layer of review" the OCP provides is designed "to ensure 

that the appropriate inmate(s) entering the residential programs do not pose an 

undue risk to the inmate and/or public safety" and to ensure that participation in 

community programs "is reviewed in a consistent manner across all inmates, and 

all correctional facilities."

Neither N.J.A.C. 10A:20-4.5(b)(1) nor the rule exemption expressly 

require the OCP as designee, to apply the numerous factors governing general 
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and specific eligibility for the RCRP. However, we do not interpret the 

regulation to grant the OCP unbridled discretion to grant or deny RCRP 

placement. In would make little sense to impose the extensive set of criteria 

governing the ICC decision, if the ultimate decision were untethered to them. 

Rather, we assume that the OCP will consider those same factors. 

We draw an analogy to the Court's method of reviewing a prosecutor's 

discretionary decision to deny admission to a pretrial intervention program. The 

Court stated, "We presume that a prosecutor considered all relevant factors, 

absent a demonstration by the defendant to the contrary." State v. Wallace, 146 

N.J. 576, 584 (1996). However, that presumption is predicated on an adequate 

statement of the factors that the prosecutor did consider. "[A] reviewing court's 

scrutiny is generally limited to the justification contained in the statement of 

reasons." Ibid.

Consistent with the principles set forth at the outset of our legal 

discussion, the OCP was obliged to provide a reasoned explanation for its 

decision. We recognize that an inmate's prior criminal record is a relevant factor 

under the regulations. See N.J.A.C. 10A:9-3.3(a)(12) ("[p]rior offense record"); 

N.J.A.C. 10A:9-4.5(a)(2) ("[p]rior criminal record"). However, it is one of 

many. Even assuming the OCP considered "all relevant factors," the OCP did 
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not provide an adequate statement of its reasons. It is not enough to state it 

denied Moore placement in an RCRP because of his "criminal history" when 

everyone in State custody has one.1 To enable judicial review, and to guard 

against an abuse of discretion, the OCP was obliged to describe the nature of 

Moore's criminal history, explain why it evidently tipped the balance against his 

participation in an RCRP, and discuss the other relevant factors it considered.

As the OCP did not adequately explain its decision, we are unable to 

ascertain whether it was a reasoned exercise of discretion, or an arbitrary and 

capricious one. We therefore remand for reconsideration and a decision that 

reflects compliance with the agency's regulatory framework. 

Remanded for reconsideration. We do not retain jurisdiction.

1 The evident purpose of an RCRP is to promote an inmate's successful 

adjustment to life back in the community. It does so by combining gradual 

reentry with the supports and supervision of the community program. We note 

that whether or not Moore is assigned an RCRP, he will eventually complete his 

sentence and be released back into the community. The agency must ultimately 

determine if it will serve the public's interest, as well as the inmate's, to precede 

that release by assignment to an RCRP, and if so, when.