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DeLaine v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 5, 2008

TROY DELAINE, APPELLANT
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Determination of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2008

Before Judges Gilroy and Baxter.

This is an appeal from a June 16, 2007 final agency decision of the New Jersey Department of Corrections (Corrections) imposing disciplinary sanctions upon Southern State Correctional Facility (SSCF) inmate Troy DeLaine pursuant to N.J.A.C. 10A:4-4.1(a). A hearing officer found DeLaine guilty of committing prohibited act *.202, possession or introduction of a weapon, and *.153, theft. On each charge, Corrections imposed sanctions of fifteen days detention, 120 days loss of commutation time and 120 days in administrative segregation. The sanctions were ordered to be served consecutively on each charge.

On appeal, DeLaine raises six separate, but overlapping, claims. In essence, there two claims: (1) the charges leveled against him were not supported by substantial credible evidence in the record, and the guilty findings were therefore error; and (2) the procedures used by Corrections violated his right to due process of law. We affirm.

As to DeLaine's first claim, our scope of review is a narrow one, and his contentions are reviewed in accordance with that standard. We must affirm unless the agency's decision was arbitrary, unreasonable, unsupported by credible evidence in the record or contrary to law. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Here, contrary to DeLaine's arguments, we are satisfied that the finding that he possessed an altered razor with the guard removed is supported by substantial credible evidence in the record. During a June 6, 2007 search of his cell, officers discovered a sharpened instrument, which was an orange and white Bic plastic razor with the guard removed. Although DeLaine denied knowing anything about the razor during the administrative hearing, he originally told the investigating officer that the razor was his and he used it to shave.

As to the theft charge, the evidence demonstrated that a number of SSCF inmates complained that newspapers and periodicals were missing from the minimum unit library. Shortly thereafter, the missing items were found in DeLaine's cell, all bearing an address label "Southern State Correctional Facility Minimum Unit Library." DeLaine admitted that the newspapers and periodicals found in his cell were the property of the prison. We are satisfied that the theft charge was supported by sufficient credible evidence.

Finally, we reject DeLaine's contention that the hearing procedures used by Corrections violated his constitutional right to due process. DeLaine received all the process he is due under law. See McDonald v. Pinchak, 139 N.J. 188, 202-03 (1995); Jacobs v. Stephens, 139 N.J. 212, 225-27 (1995); Avant v. Clifford, 67 N.J. 496, 529 (1975). He received twenty-four hours notice of the charge prior to the hearing, the hearing was timely, it was conducted by a member of the agency hearing officer staff, counsel substitute was assigned, counsel substitute made a statement on DeLaine's behalf, and DeLaine was offered the opportunity to cross-examine witnesses and call witnesses on his behalf.

DeLaine's contention that the evidence was tampered with and that it was improperly seized is not properly before this court. DeLaine did not raise these issues to the hearing officer or during his administrative appeal. We will not entertain claims that are raised for the first time on appeal to this court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

20080505

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