Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1091-25 CRAIG F. SZEMPLE, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent. __________________________ Submitted September 22, 2026 – Decided October 27, 2026 Before Judges Gilson and Paganelli. On appeal from the New Jersey Department of Corrections. Roger Martindell, attorney for appellant. Jennifer Davenport, Attorney General, attorney for respondent (Christopher Weber, Assistant Attorney General, of counsel; Elizabeth Micheletti, Deputy Attorney General, on the brief). PER CURIAM Appellant Craig Szemple is incarcerated in the New Jersey prison system. He appeals from two final agency determinations made by the Department of Corrections (Department). The first determination, issued on October 22, 2025, affirmed Szemple's placement in the Management Control Unit (MCU). The second determination, issued on February 2, 2026, affirmed his continued placement in the MCU after a review hearing. 1 Szemple was placed in the MCU in September 2025, because there were reports "indicating [he was] present[ly] involve[d] in criminal activities in the community or within the correctional facility [and] . . . . there [was] an active [Special Investigation Division (SID)] investigation which warranted [the] placement." The record, however, does not establish that the Committee or Department were aware of facts supporting the reports or the nature of the SID investigation. Accordingly, we vacate the two agency decisions and remand for a new hearing to determine if Szemple warrants continued placement in the MCU in accordance with governing regulations, including N.J.A.C. 10A:5-2.6. 1 The February 2, 2026 decision concluded by "remanding the decision of the [MCU Review Committee (Committee)] for placement in MCU Phase II consistent with N.J.A.C. 10A Chapter 5." Because that remand continued Szemple's MCU placement and because Szemple is entitled to periodic reviews of his MCU placement, see N.J.A.C. 10A:5-2.6, we deem the February 2, 2026 decision to be a final agency decision subject to appellate review. A-1091-25 2 I. Szemple is serving life sentences for two murders, N.J.S.A. 2C:11-3. He was sentenced in the mid-1990s and is currently sixty-nine years old. On September 18, 2025, Szemple was transferred from the general prison population at Northern State Prison to the MCU at New Jersey State Prison. Five days later, on September 23, 2025, he received a letter from an assistant superintendent explaining the reasons for his transfer. The letter stated: "Professional reports and information received indicate that you pose a substantial threat to the safety of others, and a threat of interrupting the operation of the institution if you are housed in general population of any State Correctional Institution." The letter also informed Szemple that an initial placement hearing would be conducted by the Committee. Before the Committee hearing, Szemple received a criteria record sheet (criteria sheet), which detailed his disciplinary record and other facts the Committee would consider. See N.J.A.C. 10A:5-2.4(a); N.J.A.C. 10A:5-2.5(a). The criteria sheet addressed various factors, including "reports by professional staff" and "reports indicating involvement in criminal activit[y] . . . ." (Boldface omitted and capitalization modified) N.J.A.C. 10A:5-2.4(a)(4) and (5). Concerning factor four, reports by professional staff, the criteria sheet stated, A-1091-25 3 "See Attached Reports." No reports, however, were attached to the criteria sheet. Addressing factor five, "reports indicating involvement in criminal activities," (boldface omitted and capitalization modified) the criteria sheet listed "[n]one." On September 29, 2025, the Committee conducted the initial placement hearing. Szemple and an assigned paralegal representing him were present at that hearing. An assistant superintendent presented the case for the Department . He explained that Szemple had been placed in the MCU because "he currently poses a substantial threat to the safety of others." The assistant superintendent also informed the Committee that "it is recommended [Szemple] be housed in the MCU pending further review and an investigation by SID." On October 3, 2025, the Committee issued a written decision affirming Szemple's placement in the MCU. The Committee explained that it was relying on "N.J.A.C. 10A:5-2.3, et al. and the Internal Management Procedures." The Committee then found that Szemple "currently pose[d] a substantial threat to the safety of others and the secure operation of the facility . . . ." Finally, the Committee explained: "It is important to understand that assignment to the MCU is not solely based on the quantity of charges. There is an active investigation by the [SID] that warrants placement in a more structured A-1091-25 4 environment." (Emphasis omitted). Under the "Evidence Relied Upon" section of the Committee's decision, it stated, "Criteria Record Sheet." No other documents were attached to the decision. Szemple administratively appealed the Committee's decision. On October 22, 2025, the Department issued a final agency decision affirming Szemple's MCU placement. In doing so, the Department stated: First, I find placement in the MCU was appropriate as there (i) was compliance with N.J.A.C. 10A:5-2.4, 10A:5-2.6 & 10A:5-2.8 because you had a meaningful hearing and the opportunity to present evidence, (ii) the decision of the MCU Hearing Officer to place you in the MCU was based on substantial evidence, (iii) and the decision was appropriate based on your case. Turning [to] the specifics of your appeal N.J.A.C. 10A:5-2.4(a)(5) allows for placement in the MCU when there are "[r]eports indicating present involvement in criminal activities in the community or within the correctional facility[.]" The record indicates there is an active SID investigation which warranted placement. [(Second and third alteration in original).] Szemple timely appealed the Department's October 22, 2025 final agency decision to us. In accordance with Department regulations, see N.J.A.C. 10A:5-2.6(a), the Committee conducted a ninety-day review hearing on January 14, 2026. A week later, on January 21, 2026, the Committee issued a decision affirming A-1091-25 5 Szemple's continued placement in the MCU and the recommendation that he be placed in Phase II. In its review, the Committee did not identify or describe any report it relied upon. Instead, it concluded: "It is the decision of [the Committee] that [Szemple] should remain assigned to the [MCU] at this time." (Boldface omitted). Szemple administratively appealed that decision, and on February 2, 2026, the Department issued a final decision affirming Szemple's continued placement. In doing so, the Department did not consider several of Szemple's arguments because the Department believed they were part of the pending appeal to this court. Szemple then amended his notice of appeal to include the Department's February 2, 2026 decision. Thereafter, we denied Szemple's motion to supplement the record with material related to the Department's February 2, 2026 decision. II. On this appeal, Szemple makes five main arguments. First, he contends that the MCU placement decisions failed to satisfy the criteria of N.J.A.C. 10A:5-2.4. Second, he argues that the Department violated procedural due process by relying on undisclosed evidence. Third, he contends that the Department's decision was arbitrary and capricious and did not make specific A-1091-25 6 findings concerning his alleged criminal conduct. Fourth, he argues that the Committee was not impartial because one of its members was a psychologist who had treated him. Finally, he argues that the Department's decision to continue his placement was also arbitrary, capricious, and contrary to the law. After reviewing the briefs on this appeal, as well as the record that did not contain a SID investigative report, we directed the Department to explain (1) whether there were or are SID investigations related to Szemple's placement in the MCU; (2) the status of all SID investigations; and (3) whether there are any written reports issued by SID. We also advised the Department that if it maintained the SID report or related information were confidential, the information should be submitted to the court for in camera review. The Department responded by informing us (1) there is currently an ongoing SID investigation related to . . . Szemple's possible involvement in a serious criminal matter that could threaten the orderly operation and safety of the facility; (2) this investigation is pending, and SID has yet to complete the interviews required to conclude the investigation; and (3) the SID has not issued a written report in connection with the investigation. Szemple, through his attorney, submitted a responding letter objecting to any submission of confidential documents that he could not review. Szemple also argued that because SID had not issued a written report, the record on this appeal A-1091-25 7 contained no description of the conduct allegedly committed by Szemple and , therefore, Szemple's placement in the MCU was based on a conclusory finding not supported by any facts. Our review of an administrative decision is limited. Malacow v. N.J. Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018). "We will disturb an agency's adjudicatory decision only upon a finding that the decision is 'arbitrary, capricious[,] or unreasonable,' or is unsupported 'by substantial credible evidence in the record as a whole.'" Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231, 237-38 (App. Div. 2019) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); N.J.A.C. 10A:5-2.7(b)(2) (stating that in reviewing an MCU placement, the Department must consider whether the decision "was based on substantial evidence"). "Substantial evidence has been defined alternately as 'such evidence as a reasonable mind might accept as adequate to support a conclusion,' and 'evidence furnishing a reasonable basis for the agency's action.'" Blanchard, 461 N.J. Super. at 238 (quoting Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010)). Judicial deference is particularly appropriate when the matter involves prison security. See Avant v. Clifford, 67 N.J. 496, 561 (1975); Berstein v. State, 411 N.J. Super. 316, 337 (App. Div. 2010). We have explained that A-1091-25 8 "[c]ourts should avoid venturing 'too cavalierly into areas that are properly the concern of [prison] officials[,]' . . . '[because] unguided substitution of judicial judgment for that of the expert prison administrators' is often 'inappropriate.'" Bernstein, 411 N.J. Super. at 337 (second and third alterations in original) (quoting Bell v. Wolfish, 441 U.S. 520, 554 (1979)). Nevertheless, even security issues must have a factual basis, and the department must comply with its own regulations. Cnty. of Hudson v. Dep't of Corr., 152 N.J. 60, 70 (1997); Blanchard, 461 N.J. Super. at 238-39 (explaining that while "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment" (alteration in original) (quoting Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999)), the court's "review is not 'perfunctory,' nor is '[its] function . . . merely [to] rubberstamp an agency's decision[.]'"(omission and second and third alterations in original) (quoting Figueroa, 414 N.J. Super. at 191)). Individuals serving criminal sentences in correctional facilities do not have a constitutional right to a less restrictive custody placement. Jenkins v. Fauver, 108 N.J. 239, 249-50 (1987); Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001). Classification and transfer of state prisoners is A-1091-25 9 placed within the sole discretion of the Commissioner of the Department. N.J.S.A. 30:4-91.1 to -91.3; Smith, 346 N.J. Super. at 29-30. Nevertheless, when an incarcerated person is placed in a restrictive unit, the placement cannot be arbitrary. See White v. Fauver, 219 N.J. Super. 170, 180 (App. Div. 1987) modified sub nom., Jenkins v. Fauver, 108 N.J. 239 (1987). Moreover, when the Department establishes regulations governing placement of incarcerated people, it must comply with those regulations. Cnty. of Hudson, 152 N.J. at 70 (explaining "an administrative agency ordinarily must enforce and adhere to, and may not disregard, the regulations it has promulgated"). The MCU is "a close[d] custody unit to which an inmate may be assigned if the inmate poses a substantial threat to the safety of others[;] of damage to, or destruction of, property[;] or the interrupting of operation of a State correctional facility." N.J.A.C. 10A:5-1.2. To determine whether an inmate should be placed in the MCU, the Committee must consider nine criteria. N.J.A.C. 10A:5- 2.4(a). Among those criteria are whether there have been reports by professional staff or reports indicating present involvement in criminal activity. N.J.A.C. 10A:5-2.4(a)(4) and (5). A-1091-25 10 Moreover, the Committee must conduct a hearing and allow the inmate to attend and be represented by a paralegal acting as a counsel substitute. N.J.A.C. 10A:5-2.3; 10A:5-2.6. At the hearing the inmate "shall be informed of all adverse information bearing on the case, with the exception of information designated confidential by" the Committee. N.J.A.C. 10A:5-2.6(j). When information is deemed confidential, "the inmate shall be informed of the confidential information in accordance with" the Department's regulations. N.J.A.C. 10A:5-2.6(l). Moreover, the Committee "shall" maintain a record of its proceedings, including the "substance of the evidence presented," and "a log of the evidence considered." N.J.A.C. 10A:5-2.6(t)(1),(3). The Committee must periodically review persons assigned to the MCU on a ninety-day basis. N.J.A.C. 10A:5-2.6(a). An inmate can be released from the MCU when the inmate no longer poses "an identifiable threat to the safety of others and the safe and secure operation of a State correctional facility." N.J.A.C. 10A:5-2.6(i)(2). Moreover, if an inmate disagrees with the Committee's decision, the inmate has a right to appeal to the Department and ultimately to us. See N.J.A.C. 10A:5-2.7. A-1091-25 11 A. The record of the MCU Placement of Szemple. The record in this matter establishes that Szemple was placed in the MCU for one reason: there had been reports that he was involved in criminal activity. Consequently, the controlling issue on this appeal is whether the Committee and Department had a factual basis to determine that Szemple was involved in criminal activities. Because the current record does not demonstrate that either the Committee or the Department had a factual basis, we reverse and remand for a new hearing. The Department argues that it had a factual basis because there were "reports" that Szemple was involved in criminal activity. They assert that the nature of the criminal activity, as well as the investigation being conducted by SID, are confidential and the Department has the right to withhold that information from Szemple under N.J.A.C. 10A:5-2.6(j), (k), and (l). The problem with the current record is that it is not clear that the Committee or the Department had any factual basis supporting the "reports" of criminal activity. The Department has admitted on this appeal that it did not have any reports from SID at the time it made the initial placement in September 2025, or when it reviewed the placement in January 2026. Indeed, on this appeal the Department has disclosed that the SID investigation is still ongoing, and no A-1091-25 12 report has been prepared. What is missing from the record, however, is whether the Committee or the Department had any factual basis apart from simply a generalized report. While the Department regulations allow it to keep certain information confidential from an inmate, the Committee and Department themselves must be able to show that they have reviewed the factual basis. See N.J.A.C. 10A:5-2.6(t)(3) (requiring a record of the Committee's hearings, including "a log of the evidence considered"). We do not fault the SID for conducting a thorough investigation. Nor on the record before us, can we determine if that investigation has been diligently conducted. The Committee and Department, however, have the duty and obligation to inform themselves of the factual basis and the status of the SID investigation as it relates to an inmate who has been placed in the MCU. See N.J.A.C. 10A:5-2.3 to -2.7. Accordingly, we remand this matter for a new hearing. At the new hearing, the Committee shall inform Szemple "of all adverse information bearing on the case." N.J.A.C. 10A:5-2.6(j). If the Committee relies on confidential information, Szemple "shall be informed of the confidential information in accordance with the [governing regulations]." N.J.A.C. 10A:5- 2.6(l). If specific confidential information is withheld, Szemple shall be given A-1091-25 13 sufficient information to establish that the reports are reliable. See N.J.A.C. 10A:5-2.6(j) through (l). B. Szemple's Other Arguments. Given that we are directing a new hearing, Szemple's current due process argument is moot. Nevertheless, as we have already explained, the Department must comply with its regulations if it maintains that certain information is confidential and should not be given to Szemple. N.J.A.C. 10A:5-2.6(l). The Committee is also to conduct periodic reviews every ninety days. N.J.A.C. 10A:5-2.6(a). Szemple's conflict-of-interest argument is also moot. Szemple argued that the psychologist who had treated him was a member of the Committee that reviewed his MCU placement. The record does not establish that Szemple objected to the participation of the psychologist at the initial September 2025 hearing. Moreover, the record does not establish what treatment the psychologist provided to Szemple and whether the treatment created a conflict with her participation on the Committee. The Department regulations state that the Committee shall be made up of five regular voting members, one of whom is a "representative from Mental Health Services." N.J.A.C. 10A:5-2.2(a)(3). On remand, if the Department A-1091-25 14 decides to use the same psychologist, it must create a record that that psychologist does not have a conflict of interest and will not be using privileged information she obtained from treating Szemple. III. In summary, we vacate the Committee's and Department's decisions issued in 2025 and early 2026. We remand with direction that a new Committee hearing be conducted within thirty days of the issuance of this opinion. The Committee and the Department are directed to develop a record consistent with the Department's regulations to establish that, if Szemple's MCU placement is continued, both the Committee and the Department had a reliable factual basis for believing that Szemple has been or is involved in criminal activity. Reversed, vacated, and remanded. We do not retain jurisdiction. A-1091-25 15