July 31, 2008
LUIS ARRIAZA, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Wefing and Parker.
Luis Arriaza is an inmate in the custody of the Department of Corrections. He appeals from a Final Decision finding him guilty of disciplinary infraction *.153, theft. After reviewing the record in light of the contentions advanced on appeal, we remand for further proceedings.
On August 4, 2007, Arriaza was seen in possession of two pairs of hair clippers, one of which had "NSP" engraved on the outer casing. As Arriaza was attempting to hand the clippers to another inmate, Corrections Officer Williams confiscated them. Arriaza told Officer Williams that he had obtained the clippers from an inmate who had been released but that he could not remember the inmate's name.
Arriaza was charged with theft, and a disciplinary hearing was conducted on August 6, 2007, at which Arriaza received the assistance of counsel substitute. At the hearing, Arriaza said he had received the clippers from another inmate but was unwilling to identify who that inmate might be. Arriaza was found guilty and sentenced to ten days in detention. He also lost one hundred eighty-five days of commutation credit and fifteen days of recreation privileges. In addition, he was to serve one hundred eighty-five days in administrative segregation, but that portion of the sanction was suspended for sixty days; if Arriaza remained charge-free for sixty days, he would not be placed in administrative segregation.
Arriaza appealed and included with his appeal a signed statement from another inmate, Aref Guerra, that the clippers belonged to him and that he had lent them to Arriaza. Arriaza's administrative appeal was rejected and this appeal followed.
Arriaza presents two issues on appeal:
POINT I EVIDENCE WAS INSUFFICIENT TO SUPPORT THE HEARING OFFICER'S FINDING OF GUILT POINT II DEFENDANT WAS DENIED HIS DUE PROCESS RIGHT TO PRESENT WITNESSES AND TO DEVELOP ONE'S OWN PROOF.
We note the limited scope of our review in an appeal such as this. A final decision of an administrative body such as the Department of Corrections should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1988). An appellate court should undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). The agency's findings should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citations omitted).
Thus, we reject Arriaza's first contention. Based upon the material presented to the hearing officer, there was sufficient evidence to support the determination that Arriaza was guilty of theft.
We are, however, troubled by the refusal to consider the statement of Aref Guerra which Arriaza presented in connection with his administrative appeal. If that statement is true, Arriaza is not guilty of theft. We recognize the principle, fundamental to appellate proceedings, that one may not raise on appeal an issue not presented below. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973). The Department of Corrections relies upon that principle and urges that we disregard Guerra's statement.
Our fundamental obligation, however, is to see that justice is done to the best of our ability. We have no way to determine the worth or reliability of Guerra's statement, but if it is accurate, Arriaza has received significant sanctions for conduct which may not have been actionable. Such a result would be unjust. We have, in appropriate cases, remanded a matter to permit consideration of an issue not raised below when required "in the interest of fairness." Woodview Condo. Ass'n v. Shanahan, 391 N.J. Super. 170, 181 (App. Div. 2007).
We deem this appeal such a matter. We, therefore, remand this matter to the Department of Corrections for further proceedings at which Arriaza shall be permitted to present his additional evidence. We do not retain jurisdiction.
Remanded for further proceedings in accordance with this opinion.
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