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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2365-20






                   Submitted May 4, 2021 – Decided May 11, 2021

                   Before Judges Ostrer and Enright.

                   On appeal from the New Jersey Department of

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (John P. Flynn, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Suzanne Davies, Deputy Attorney
                   General, on the brief).

      Inmate Leander Williams appeals from the Department of Corrections'

final agency decision refusing to consider supplemental information

supporting his request for release on emergency medical home confinement

(EMHC) under Executive Order 124, as supplemented by In re Request to

Modify Prison Sentences, 

242 N.J. 357

, 369 (2020). We reverse and remand.

      Williams was sentenced to an aggregate eight-year term of incarceration,

with a four-year period of parole ineligibility, for various non-violent drug-

related crimes. He is forty-nine years old and has an extensive prior criminal

record, including prior terms of incarceration and periods of community

release.   He reportedly suffers from various medical ailments, including

diabetes, asthma, hypertension and congestive heart failure.

      Deemed eligible for EMHC under the Executive Order, Williams applied

for release early in 2020.      However, the Emergency Medical Review

Committee recommended against Williams's release, and the Commissioner

agreed in a May 5, 2020 decision.

      One month later, the Supreme Court issued its decision in Request to

Modify. Among other things, the Court required the Commissioner to give

inmates a statement of reasons for EMHC denials, which could be brief, and to

allow inmates to correct any perceived mistakes and provide additional

information to satisfy the Commissioner's concerns. Request to 

Modify, 242

N.J. at 389


      Less than two weeks after the Court ruled, the Commissioner denied

Williams's application again, this time stating his reasons in a checklist. The

Commissioner's June 17, 2020 decision cited:

               2.)   Offense record is extensive and/or repetitive
               4.) Committed to incarceration for multiple
               6.) Prior opportunity on community supervision did
               not deter criminal behavior
               7.) Prior incarceration(s) did not deter criminal
               10.) Lack of adequate furlough plan
               11.) Poor risk assessment evaluation
               14.) Other agency objection, specify Prosecutor
               Christopher Kuberiet.

Williams evidently did not try to correct any errors, nor did he provide any

additional information in the four days the Commissioner allotted for that


      Nine months passed. Then, in March 2021, counsel for Williams wrote

to the Commissioner asking him to "accept this statement in support of Mr.

  The Department contends on appeal that the time period for reconsideration
requests actually is five days.
Williams's consideration for EMHC." Counsel acknowledged that Williams

"may have been previously considered for EMHC" before counsel began

representing him. Counsel asserted that circumstances had changed since the

prior consideration.   Specifically, counsel noted that Williams's wife had

moved to a new address where Williams intended to live. Counsel argued the

residential arrangement "provided a suitable furlough plan."       Counsel also

noted that Williams had been approved for transfer to a halfway house and

would be eligible for parole in October 2021.           Counsel argued those

developments demonstrated he posed a reduced risk to community safety.

Counsel also asserted that Williams's various health conditions justified

medical home confinement, although counsel did not assert that Williams 's

condition had changed significantly since he initially applied for EMHC.

      The Department's Director of Classification deemed counsel's letter to be

a request to reconsider the Commissioner's June 17, 2020 decision.             The

Director noted that reconsideration requests had to be made within five

business days of an initial denial. Because counsel sent his letter almost nine

months after the initial denial, it was "untimely and cannot be considered."

      On appeal, Williams argues that the Commissioner's refusal to consider

his renewed request for EMHC was arbitrary and violated due process. He

asserts the Department has the "inherent power to reopen or to modify and

rehear prior decisions," quoting In re Application of Trantino, 

89 N.J. 347

, 364

(1982), and citing Duvin v. State, 

76 N.J. 203

, (1978) and In re Van Orden,

383 N.J. Super. 410

, 421 (App. Div. 2006).         In response, the Department

contends its need to swiftly decide EMHC requests justified the short deadline

for reconsideration requests, and the Department did not arbitrarily refuse to

consider Williams's latest request, especially since he did not present good

cause for his delay.

        The Commissioner exercises wide discretion in deciding if he will grant

an EMHC application. Request to 

Modify, 242 N.J. at 390

. We will not

overturn that decision "unless it is arbitrary, capricious, or unreasonable."

Ibid. We ask, does

the decision "conform[] with relevant law"; does

"substantial credible evidence in the record as a whole . . . support the agency 's

decision"; and "in applying the relevant law to the facts, [did] the agency

clearly err[]"?

Ibid. (quoting In re

State & Sch. Emps.' Health Benefits

Comm'ns' Implementation of Yucht, 

233 N.J. 267

, 280 (2018)).

        We conclude that the Department's refusal to consider Williams's new

information because it was not presented within five days of its June 17, 2020

decision was unreasonable. Although Williams does not state precisely when

his wife was prepared to share her home with him and when he was approved

for a halfway house, those events obviously occurred after, if not long after,

the brief window provided in the Commissioner's June 17, 2020 decision.

      The Court in Request to Modify held that due process principles required

that the Commissioner permit inmates to attempt to correct mistakes and

address concerns leading to initial denials of furlough.

            [I]nmates should have an opportunity to respond in
            writing to the statement of reasons [denying the
            furlough]. In that way, they may be able to cure a
            mistake or satisfy a concern of the Commissioner. For
            example, if the original sponsor is deemed
            unsatisfactory, the inmate can propose another; if the
            proposed housing is deemed unacceptable because of a
            factual mistake, the inmate can clarify the error. The
            Commissioner must consider the response before
            finalizing the agency's decision.      Afterward, the
            inmate and counsel must receive prompt notice in

            [Id. at 389.]

Implicitly, an inmate must contemporaneously possess the wherewithal to

"cure a mistake," or to "satisfy a concern" to utilize the opportunity to respond

to the statement of reasons. The Court simply did not address what should

happen if an inmate's circumstances changed significantly after the

Commissioner's denial.

      The Commissioner could deem a submission like Williams's as a request

to reconsider a prior denial, or as a new application. We leave that procedural

decision to the Commissioner. But, either way, well-established principles

compelled the Commissioner to consider Williams's new information.

      An administrative agency has the inherent power to reconsider its

decisions. See 

Trantino, 89 N.J. at 364

. An agency cannot "arbitrarily refuse

to reopen the record" in an adjudicative proceeding. Steven L. Lefelt et al., 37

N.J. Prac., Administrative Law and Practice § 6.32 (2d ed. 2020). It may be an

abuse of discretion to refuse to do so when presented with "new evidence or

changed circumstances." See Fry v. D.E.A., 

353 F.3d 1041

, 1044 (9 th Cir.

2003).   We recognize the general interest in repose, but no one has

detrimentally relied on the prior denial; and the balance here tips in favor of

considering Williams's new information. See Skulski v. Nolan, 

68 N.J. 179


199 n.10 (1975) (discussing factors affecting an agency's decision to reopen a

prior determination).

      The agency's five-day deadline cannot be immutable. In Rivera v. Bd. of


127 N.J. 578

, 585-86 (1992), the Supreme Court held that modern

notions of due process temper rigid application of time limitations that impact

a person's property interests.   There, due process required a good cause

exception to allow late appeals from unemployment compensation decisions.

Ibid. Likewise, in this

case, if the Commissioner chooses to deem Williams's

March 2021 letter a reconsideration request (as opposed to a new request based

on new facts), he is required to relax the deadline for good cause, specifically,

because Williams presented information that simply was not available in the

allotted time.

      The    Commissioner's    refusal       to   consider   Williams's   request   is

unreasonable for another reason. The Commissioner contends on appeal that it

imposed the short five-day time frame to respond to the Court's statement in

Request to Modify urging the Commissioner to swiftly consider EMHC

applications because "time [wa]s of the 

essence.” 242 N.J. at 392-93


However, the Court urged swift action only to vindicate, not defeat, an

inmate's interest in a medically based furlough during a pandemic.

      Alternatively, if the Commissioner does not deem Williams's March

2021 letter as a reconsideration request, then the Commissioner should permit

Williams to submit a new application based on his counsel's letter. If a new

application form is required — we note that Williams completed one in April

2020 — the Department should give Williams a chance to submit one. The

Department may decide to seek an updated recommendation from the

Emergency Medical Review Committee.               It would be arbitrary and

unreasonable to deny an inmate an opportunity to present information

regarding a material change in circumstances. In another context, we have

held that a change in circumstances is "material" if it is reasonably possible

that it would warrant a different outcome. See State v. Paul, 

465 N.J. Super.


, 298 (App. Div. 2020) (defining material change in circumstance

justifying different conditions of release under the Criminal Justice Reform

Act). Similarly, if an inmate presents facts regarding new developments that

make it reasonably possible that an EMHC furlough might be granted — and

Williams has done so by asserting his furlough plan and risk to the community

has significantly changed — then the Department should permit the inmate to

start the application process anew.

      We express no opinion on the merits of Williams's renewed application

for an EMHC furlough. However, the Commission is obliged to consider his

submission, either as a request for reconsideration, or as a new application.

      Reversed and remanded. We do not retain jurisdiction.


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