April 24, 2008
RONELL DAVIS, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 15, 2008
Before Judges Coburn and Fuentes.
Ronell Davis, an inmate at East Jersey State Prison, appeals from a final decision of the Department of Corrections finding him guilty of committing prohibited act .051, engaging in sexual acts with another.
In this case the sexual act was observed by a Senior Corrections Officer, who observed a visiting female massaging Davis's inner thigh near his penis.
On appeal, Davis argues that the decision was arbitrary and that the hearing officer had not provided an adequate written statement of the evidence on which he relied in reaching his decision.
After carefully reviewing the record and briefs, we are satisfied that Davis's argument are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), and that the final decision of the agency is supported by sufficient evidence on the record as a whole. R. 2:11-3(e)(1)(D).
We note in passing that Davis did not argue before the agency that there had been a lack of an adequate statement of the evidence by the hearing officer. Therefore, that argument cannot be raised here. Nieder v. Royal Indemnity Insur. Co., 62 N.J. 229, 234 (1973); see, Chubb Group on Behalf of Conrad v. Trenton Board of Education, 304 N.J. Super. 10, 20 (1997) (rule applied in appeal of State Agency decision). Furthermore, the reporting officer provided a report that explained what occurred in detail, while noting that the conduct was also videotaped. The administrative agency was fully entitled to reject Davis's claim that his visitor was only rubbing his leg. Therefore, we are obliged to affirm.
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