On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Payne and Alvarez.
In this prisoner disciplinary matter, Oscar Ayo, a New Jersey State Prison inmate, appeals from the final administrative decision issued by respondent, New Jersey Department of Corrections (DOC) on October 17, 2007, adjudicating him guilty of disciplinary infraction .304, the prohibited act of "using abusive or obscene language to a staff member," in violation of N.J.A.C. 10A:4-4.1. Ayo's contention is that the institutional hearing violated his constitutional due process rights. We affirm.
On October 9, 2007, a response team of corrections officers was called to the kitchen of East Jersey State Prison where Ayo was assigned to work. One of the officers subsequently filed a report that Ayo "raised his middle finger" to the team as they entered the room, and Ayo was charged with *.306, conduct which disrupts the orderly running of a facility. Ayo entered a plea of not guilty, claiming that he was merely gesturing to another inmate, a cook, and was assigned counsel substitute.
During the investigation conducted prior to the hearing, Ayo supplied the name of the cook as a potential witness. When interviewed, that individual denied seeing Ayo make any gesture at all.
The hearing officer preliminarily amended the charge from the more serious *.306 to the less serious .304 offense. He conducted the hearing on October 11, 2007, found Ayo guilty, imposed a sanction of ten days detention, credit for time served, and recommended a job reassignment. The reasons for his decision were the weight he accorded the officer's statement, Ayo's acknowledgement that he made the gesture in question, and the fact Ayo's witness failed to corroborate Ayo's version of events.
Ayo first contends that he was denied due process because no "substantial evidence," as required by N.J.A.C. 10A:4-9.15, was developed during the hearing. Contrary to his assertion, the proofs meet the applicable "substantial evidence" standard.
"[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We see no reason to disturb the hearing officer's finding that the officer's statement was credible, and that Ayo's statement was not credible. The record supports the hearing officer's decision that Ayo made the offending gesture towards the officers who appeared to quell a disruption, as opposed to towards another inmate. It was not an arbitrary, capricious or unreasonable decision and it is supported by substantial, credible evidence.
Ayo also contends that he "was denied due process of law where the hearing officer was allowed to both amend the charge and thereafter adjudicate the disciplinary proceedings." The argument, essentially, is that because the hearing officer preliminarily reduced the charge from the more serious *.306 to the lesser .304, that he had somehow prejudged guilt to Ayo's detriment before he heard the matter. Amendments are authorized pursuant to N.J.A.C. 10A:4-9.16(a) when a charge is issued in error. Given the nature of the event, the amendment was proper.
Neither Ayo, nor his counsel substitute in his behalf, objected to the amendment until this appeal, most likely because the decision worked to Ayo's benefit. As the State correctly notes, however, we cannot consider issues not raised at the hearing, absent some unique circumstance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Even if constitutional in nature, newly minted issues cannot be considered on appeal unless they relate to jurisdiction, or substantially implicate the public interest. Ibid. Neither exception is applicable here. Accordingly, we decline to address this point further.