On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Lihotz and Messano.
Appellant Ravon Freeman appeals from the Department of Corrections' final adjudication of guilty of the institutional infraction *.101, escape, N.J.A.C. 10A:4-4.1(a), and the resultant imposition of disciplinary sanctions. Freeman asserts the record does not support this adjudication, which he now seeks to have vacated. We affirm.
Freeman was confined following convictions for receiving stolen property and resisting arrest. Beginning April 23, 2007, Freeman was assigned to Kintock III, a halfway house in Newark. At 9 a.m., on December 17, 2007, Freeman, with approval, signed out of Kintock, to conduct a job search. The terms of his release required him to return by 1:30 p.m. Although he arrived at the employment site and called as he was leaving to return to Kintock, Freeman did not return to the facility. On December 19, 2007, Freeman surrendered to Northern State Prison, the prison facility affiliated with Kintock. Freeman's "defense was one of necessity," explaining he was running late due to the inclement weather and traffic delays incurred while using public transportation. Further, when he called Kintock, seeking an extended time of arrival, no one answered the facility telephone. It was undisputed the telephones in "the air control booth [had] been out all day."
The initial hearing commenced on December 24, 2007, and was adjourned by Hearing Officer McGovern, due to Freeman's transfer. The second hearing commenced on December 27, 2007, by Hearing Officer Morales. Morales listed the documentary evidence and noted defendant declined the opportunity to call or confront witnesses. She too adjourned the hearing. Finally, on January 2, 2008, Hearing Officer Nolley reviewed all testimony and evidence. At that time, Freeman called no witnesses and declined to confront or cross-examine adverse witnesses. Nolley recorded Freeman's statement: "The phone lines were down. I made a decision to not go back [sic]."
Nolley determined Freeman was guilty and imposed a sanction of fifteen days detention, suspended for sixty days; 185 days loss of commutation credit; 185 days administrative segregation, suspended for sixty days; and thirty days loss of recreation privileges. The recommendation gave consideration to the fact Freeman had turned himself in. Freeman appealed, requesting leniency and a reduction in sanctions. On review by the Assistant Superintendent of the Department of Corrections (DOC), the recommendation was upheld.
The scope of our review of an agency decision is limited. "Ordinarily, an 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) (citing Campbell v. Dep't of Civil Service, 39 N.J. 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). Indeed, the applicable departmental regulation requires "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a); see also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring substantial evidence to support inmate sanction).
Although our review is limited, "our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). "Our role is to engage in a 'careful and principled consideration of the agency record and findings.'" DeCamp v. Dep't of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (citing Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) and quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). A DOC decision on prisoner discipline matters will be disturbed only upon a finding its ruling is arbitrary, capricious, unreasonable or unsupported by substantial credible evidence in the record. In re Taylor, 158 N.J. 644, 657 (1999); Henry, supra, 81 N.J. at 579-80.
Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956); see also In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961); Mead Johnson & Co. v. Borough of S. Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967). "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).
On appeal, Freeman argues his rights of procedural due process were violated because (1) "[s]eparate disciplinary hearing officers accepted and reviewed evidence"; (2) he was denied "a confrontation and cross-examination hearing" wherein he could have challenged the employment status of the employee reporting the disciplinary infraction; (3) Nolley denied Freeman's request for the telephone logs to be produced; and (4) counsel substitute was "ignorant of the defense of necessity to the charge of escape." He also suggests the record created by the hearing officer was inaccurate.
The alleged violation of the requirement that "a single finder of fact receive all the evidence . . . and make determinations based on all of the proofs," Ratti v. Dep't of Corr., 391 N.J. Super. 45 (App. Div. 2007), is not supportable. Although two prior hearing officers addressed the case, only Nolley reviewed the evidence, heard Freeman's statement, and made all determinations.
Also, we discern no departure from the process Freeman is due. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 215 (1995); Avant, supra, 67 N.J. at 529; N.J.A.C. 10A:4-9.1 to -9.28. The summary sheets from the adjudication show Freeman received written notice of the charges and evidence relied upon, was afforded an opportunity to call witnesses or present documentary evidence, had the chance to cross-examine adverse witnesses, and was aided by counsel substitute. Avant, supra, 67 N.J. at 529. As to the claim counsel substitute was ineffective for failing to confront adverse witnesses or present a defense, suffice it to say, Freeman never raised the issue below, Nieder v. Royal Indem. Ins. ...