October 9, 2009
COREY COLEMAN, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Sapp-Peterson and Espinosa.
Appellant inmate Coleman appeals from the adjudication of two disciplinary charges against him, escape *.101, and assault *.002, as set forth in N.J.A.C. 10A:4-4.1(a).
Appellant was incarcerated at the Center for Urban Education ("CUE"), a halfway house in Irvington. On August 4, 2008, he was found to be missing during a head count taken at 12:04 a.m. After he was declared an escapee, he was observed climbing back into the facility through a window at 1:05 a.m. Ten minutes later, he was observed leaving through a second floor bathroom window. CUE personnel alerted an Irvington police officer and pointed out appellant. He refused to stop in response to the officer's commands, kicked the officer's K9 partner several times and pushed the officer who tried to arrest him in an attempt to escape. The officer had to use force to subdue him and effect the arrest. Appellant was treated at a hospital, released and taken to Irvington Police Department. He was returned to the custody of the Department of Corrections ("DOC") on August 7, 2008.
The *.002 charge was served upon him on August 8, 2008. The *.101 charge was initially served on August 4, 2008, and then re-served upon him on August 11, 2008, after he was returned to custody. Both charges were referred to a hearing officer for further action.
Appellant was provided with a counsel substitute. He chose not to confront adverse witnesses or to call witnesses on his behalf but did put on a defense. He provided the following statement:
I did not escape. I was out of place. I didn't go out of the building until 1:10 a.m. I called her to come pick up my money because they said I was going back. I had money orders. Went out the front door. I went down the street. On my way back the officer pulled up.
Appellant was shown the adjudication reports and the evidence relied upon by the hearing officer. The Adjudication of Disciplinary Charge form reflects that the non-confidential evidence relied upon included statements and reports of the CUE Resident Supervisors and a four page escape report as well as a two page police report. The Adjudication also reflects the acknowledgment of appellant's counsel substitute that the information recorded on the form accurately reflected what took place at the disciplinary hearing.
The hearing officer found appellant guilty on both charges. Appellant was sanctioned to fifteen days detention, loss of commutation time for 180 days, and administrative segregation for 180 days, which was suspended for sixty days on the *.101 escape charge. He was sanctioned to a consecutive fifteen days detention, 365 days loss of commutation time and 365 days administrative segregation on the *.002 assault charge.
Appellant filed an administrative appeal from that decision. In his appeal, he stated, "I ran into a little trouble on August 4th and I was wrong for being outside the facility but never assaulted anyone." The Assistant Superintendent upheld the hearing officer's decision. Appellant appeals from that final decision and raises the following issue on appeal:
PETITIONER'S STATE AND CONSITUTIONAL RIGHTS TO MINIMAL PROCEDURAL DUE PROCESS UNDER THE FOURTEENTH AND SEVENTH ADMENDMENT OF LAW AND ADMINISTRATIVE FAIRNESS WERE VIOLATED WHICH ARE PLAIN ERROR TO THE FINDINGS OF GUILT IN COLEMAN'S DISCIPLINARY SANCTION, WHICH IS FOUND ON INSUFFICIENT EVIDENCE TO SUPPORT THE FINDINGS.
Appellant contends, for the first time on appeal, that he had a right to receive the Irvington police officer's report pursuant to N.J.A.C. 10A:4-9.5, and that the DOC lost the right to charge him by failing to serve the disciplinary report upon him within forty-eight hours of the violation as required by N.J.A.C. 10A:4-9.2. This court does not entertain exceptions raised for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, even a brief review of the arguments reveals them to be lacking in merit.
Our review of the DOC's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).
An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33.
The record shows that the disciplinary process here did not violate appellant's due process rights. Appellant was provided with a counsel substitute. He was advised of his right to call witnesses on his behalf and to confront adverse witnesses and declined to do so. He and his counsel substitute had the opportunity to review and challenge the Irvington Police Department report at the disciplinary hearing. In addition, appellant received the disciplinary report prepared by Special Investigations Division Investigator Strickland on August 8, 2008, three days before the scheduled date for the disciplinary hearing.
The investigation to be conducted as part of the disciplinary proceeding is governed by N.J.A.C. 10A:4-9.5. This section permits inmates to obtain inmate witness statements under certain circumstances and requires that evidence, such as staff reports, be attached to the investigatory report. However, it sets no time limit for the disclosure of this information to the inmate. It is undisputed that appellant and his counsel substitute had the opportunity to review and challenge these documents at the hearing and that no objection was raised at that time to proceeding on that date.
Appellant also contends for the first time on appeal that the DOC lost the right to file an assault charge against him because he was not served with a disciplinary report within forty-eight hours of the violation as required by N.J.A.C. 10A:4-9.2. However, N.J.A.C. 10A:4-9.9(a) explicitly states,
"The failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." The Disciplinary Hearing Officer or Adjustment Committee has the discretion to dismiss a disciplinary charge because of a violation of time limits upon consideration of (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the inmate in preparing his/her defense; and (4) the seriousness of the alleged infraction. Ibid. Since appellant did not raise this issue at the hearing, the hearing officer did not weigh these factors. The record shows that even if this argument had been made to the hearing officer, its rejection would have been proper.
The violation occurred on August 4, 2008. Appellant was not returned to DOC custody until August 7, 2008. The assault charge was served upon him the next day. Therefore, the charge was served approximately four days after the violation, or two days beyond the forty-eight hour limit. As for the reason for the delay, the violation occurred while he was out of DOC custody. An investigation was conducted after he was returned to DOC custody and he was served with the disciplinary report one day after his return. Appellant has not identified any prejudice he suffered as a result of the delay. Significantly, he received the report three days before the date scheduled for the disciplinary hearing, affording him significantly more than the twenty-four hours required by N.J.A.C. 10A:4-9.2 to prepare his defense. The charge itself, assault, was a serious one, particularly in light of the fact that it was committed in an effort to avoid arrest while appellant was an escapee or, as he put it, "out of place." Even if these facts do not rise to the level of the "exceptional circumstances" exception to the forty-eight hour requirement in N.J.A.C. 10A:4-9.2, these circumstances certainly preclude a finding that the delay in serving the assault charge violated appellant's due process rights.
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