October 26, 2009
RASUL BURT, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 19, 2009
Before Judges Lisa and Baxter.
This is an appeal from an August 7, 2008 final agency decision of the New Jersey Department of Corrections (Corrections), imposing disciplinary sanctions upon Bayside State Prison inmate Rasul Burt pursuant to N.J.A.C. 10A:4-4.1(a). A hearing officer found Burt guilty of committing prohibited act *.101, escape. Corrections imposed a sanction of 270 days of administrative segregation and 270 days of loss of commutation time. We reject Burt's contention that because he was not served with timely notice of the disciplinary infraction, he was unable to present witnesses in his defense, thereby violating his right to due process of law. We affirm.
On July 13, 2008, without permission, Burt walked out the front door of the halfway house where he was confined. He was not apprehended until August 1, 2008. That same day, a Corrections official authorized the filing of an escape charge against Burt and approved placing Burt in pre-hearing detention, where he remained until August 5, 2008. On August 5, 2008, Burt was served with a copy of the disciplinary infraction.
The hearing was conducted on August 7, 2008, with counsel substitute present and assisting Burt. At the hearing, Burt did not give a statement or request any witnesses. In fact, the hearing officer noted that Burt withdrew his request for witnesses. In addition, Burt was offered, but declined, the hearing officer's offer of the opportunity to confront adverse witnesses. Burt entered a plea of guilty, and counsel substitute requested leniency.
Relying upon the investigative reports and the inmate's admission of guilt, the hearing officer found Burt guilty of committing prohibited act *.101. The hearing officer imposed the penalty we have described, noting that he had "mitigated" the penalty "due to late service" of the complaint upon Burt.
Burt's appeal of the adverse finding was unsuccessful; on August 11, 2008, a prison administrator upheld the guilty finding. At no time, either before the hearing officer or in his administrative appeal to the prison administrator, did Burt argue that the late service of the charge interfered with his ability to call witnesses, to confront adverse witnesses or to otherwise prepare a defense.
On appeal, for the first time, Burt argues that because he was placed in pre-hearing detention for five days prior to the hearing and was only afforded forty-eight hours to prepare a defense, his due process rights were violated. Corrections urges us to summarily reject these claims because Burt failed to raise them in his administrative appeal. Corrections maintains that had Burt raised these issues at the hearing or in his administrative appeal, both the hearing officer and the prison administrator would have assessed the validity of his arguments; however, having failed to raise such claims before the agency, he is precluded from presenting them on appeal. We agree.
Absent exceptions not relevant here, we will not consider on appeal issues that should have been, but were not, presented at the hearing or trial level. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Suffice it to say, however, Burt's claims are meritless. He received notice of the charges forty-eight hours prior to the hearing, well in excess of the twenty-four hours that the Court required in Avant v. Clifford, 67 N.J. 496, 525 (1975). Moreover, contrary to Burt's contention on appeal that Corrections interfered with his right to present witnesses, the record demonstrates that Burt was offered, but declined, the opportunity to call witnesses on his own behalf and likewise declined the opportunity to cross-examine adverse witnesses. Finally, Corrections's finding that Burt was guilty of the charge of escape is supported by substantial, credible evidence in the record and is neither arbitrary nor capricious. For that reason, we will not disturb the agency's ruling. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
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