October 19, 2009
RICHARD BROOKS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 October 7, 2009
Before Judges Axelrad and Espinosa.
Appellant inmate Richard Brooks appeals from the adjudication of three disciplinary charges against him: threatening another with bodily harm, *.005; conduct which disrupts the orderly operation of the institution, *.306; and refusing to obey any order,.256; as set forth in N.J.A.C. 10A:4-4.1(a). We affirm.
The infractions arise from appellant's interaction with Corrections Officer Recruit Govens on October 12, 2008. On the following day, the disciplinary charges were served upon him and the matter was referred to a hearing officer for further action. In the hearing, the Department of Corrections (DOC) presented evidence that can be summarized as follows: Appellant ignored Govens's order to get off the phone and then passed the phone to another inmate, in violation of the rules in the inmate handbook. Shortly thereafter, appellant approached Govens and said, "Bitch, I will fuck you up if you write that charge, do you think it's a fucking game, you don't know who you messin' with bitch." Govens sounded a duress alert. Sergeant Young responded and found appellant still at the officer's desk. Sergeant Young noted that appellant threatened Govens during the open recreation period with approximately twenty-five to thirty inmates present.
The failure to respond to Govens's direct order was the basis for the refusal to obey an order charge. The threatening comment to Govens was the basis for the threatening another with bodily harm charge. The emergency code that was called in response to the threatening behavior, resulting in the lock down of the unit, was the basis for the charge of conduct which disrupts the orderly running of the correctional facility.
Appellant disputed the DOC's version of events. He submitted a statement in which he said:
Purnell & I work together. He asked me to make a call for him. I didn't know so I gave him the phone so my people could call for him. She said something & said go ahead. I got called for my medication & went back. She called me back down & then she called a code saying I threatened her, but I didn't threaten her. I been here for 2 years and I was also here when this place opened these officers knows me. I wouldn't do that. It's common sense.
He also elicited a witness statement from inmate Purnell:
Mr. Brook did me a favor concerning my daughter which is 13 years old. I did not see Mr. Brook do any wrong or disrespect anyone. I went back to my room and didn't come back out until it was time for me to go to work the next morning.
The hearing officer found appellant guilty of all three charges. The hearing officer noted that inmate Purnell's statement "confirmed the misuse of the phone system," found that there was substantial credible evidence that appellant threatened the officer, and found the officer's report credible. Appellant was sanctioned on the.256 charge to ten days detention, with credit for time served, sixty days loss of commutation credit and thirty days loss of telephone privileges; on the *.005 charge to fifteen days detention, two hundred ten days loss of commutation credit and two hundred ten days administrative segregation, all consecutive to the sanctions on the.256 charge; and on the *.306 charge to five days detention, ninety days loss of commutation credit and ninety days administrative segregation, all consecutive to the sanctions on the first two charges.
Appellant filed an administrative appeal. The hearing officer's decision was upheld by the Assistant Superintendent. Appellant filed this appeal from the DOC's decision and raises the following issues:
THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL EVIDENCE, IN VIOLATION OF THE CODE. (NOT RAISED BELOW).
APPELLANT WAS DENIED DUE PROCESS DURING THE AGENCY HEARING BY BEING ADJUDICATED TWICE FOR THE SAME OFFENSE (NOT RAISED BELOW).
Appellant contends, for the first time on appeal, that the hearing officer's decision was not based on substantial evidence*fn1 and that he was denied due process by allegedly being adjudicated twice for the same offense. This court does not entertain exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); 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).
In this case, the charge regarding the misuse of the telephone system was supported by the statements of both the officer and appellant's own witness. The hearing officer evaluated the credibility of the officer, found her account to be credible and rejected appellant's denial that he had threatened the officer. The adjudications were, therefore, supported by sufficient credible evidence in the record.
Appellant argues that a verbal reprimand he received from Sergeant Young at the time of the incident constituted an "onthe-spot" correction pursuant to N.J.A.C. 10A:4-7.1 and that to charge him thereafter with refusing to obey an order was a violation of his due process rights. However, the procedure followed here is explicitly permitted by N.J.A.C. 10A:4-7.6(a), which provides as follows:
Should the custody staff supervisor conclude that a more serious sanction may be appropriate, the infraction shall be referred to the Disciplinary Hearing Officer or Adjustment Committee for a disciplinary hearing and disposition.
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.
Consistent with these requirements, appellant was provided with a counsel substitute. His requests for a witness statement from inmate Purnell and confrontation with Officer Recruit Govens were granted. The decision to refer his conduct to a hearing officer after an on-the-spot correction was entirely consistent with the procedures established by the DOC. The record therefore shows that the disciplinary process here did not violate appellant's due process rights.