February 24, 2010
VICTOR A. VESTON, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2010
Before Judges Fuentes and Simonelli.
Defendant Victor A. Veston appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited acts *.101 (escape), and *.204 (use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff), N.J.A.C. 10A:4-4.1. We affirm.
In March 2005, Veston began serving a six year term of imprisonment for resisting arrest, aggravated assault, simple assault, and bail jumping. In May 2008, Veston was placed in the community release program and assigned to The Kintock Group (Kintock).
Veston admits that he escaped from Kintock on September 17, 2008. On September 19, 2008, Veston surrendered to the DOC's Special Investigations Division Fugitive Unit and was returned to Riverfront State Prison. Upon his return, he was ordered to submit a urine specimen, which tested positive for THC50 (marijuana) and cocaine. As a result, he was charged with prohibited acts *.101 and *.204.
Veston was served with the *.101 charge on September 19, 2008. At a hearing on September 25, 2008, Veston requested and received counsel substitute, did not request any witnesses, declined the in-person offer to confront adverse witnesses, and pled guilty to the charge. After reviewing the evidence, the hearing officer found Veston guilty and imposed the following sanctions: 15 days detention; 180 days of administrative segregation; and 180 days loss of commutation time (LOCT).
Veston administratively appealed the sanctions. In a written statement, Veston admitted using alcohol, marijuana and cocaine after he escaped from Kintock and requested leniency. He raised no other issues. On September 26, 2008, an Administrator upheld the guilty finding, granted leniency and modified the sanctions by suspending the 15 days suspension and the 180 days of administrative segregation for 60 days. The Administrator upheld the 180 days LOCT.
On October 3, 2008, Veston was served with the *.204 charge. At a hearing on October 6, 2008, Veston requested and received counsel substitute, did not request any witnesses, declined the in-person offer to confront adverse witnesses, and pled not guilty to the charge. After reviewing the evidence, including Veston's written statement, the hearing officer found Veston guilty and imposed the following sanctions: 15 days detention; 180 days of administrative segregation; 180 days LOCT; 180 days of urine monitoring; and permanent loss of contact visits.
Veston administratively appealed the sanctions and requested leniency. He raised no other issues. On October 8, 2008, an Administrator upheld the guilty finding, granted leniency, and modified the sanctions by suspending the 15 days suspension and the 180 days of administrative segregation for 60 days. The Administrator upheld the permanent loss of contact visits, the 180 days LOCT and 180 days of urine monitoring, and referred Veston to in-patient counseling. This appeal followed.
Veston contends for the first time on appeal that: (1) he should have been charged under prohibited act.204A because he used drugs while assigned to a residential community program;*fn1 (2) he received harsher sanctions than other inmates because he pled not guilty to prohibited act *.204; (3) the *.101 charge is overly broad and improperly carries the same severe sanctions regardless of the circumstances; and (4) the DOC violated N.J.A.C. 10A:4-9 and -10.
Except to address the fourth contention, we decline to consider Veston's contentions because they were not properly presented below when an opportunity for such a presentation was available, and do not concern jurisdiction or matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Even if we addressed those issues, they lack merit. Escape is a serious offense under any circumstances, requiring severe sanctions. Also, an inmate who uses drugs during an escape from a halfway house can be charged with violating prohibited act *.204. Ries v. Dept. of Corr., 396 N.J. Super. 235, 239 (App. Div. 2007).
Regarding Veston's fourth contention, a prison disciplinary proceeding "'is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.'" Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 484, 494 (1972)). However, in such proceedings prisoners have certain procedural due process rights, including a limited right to call witnesses, present documentary evidence and to confront and cross-examine witnesses where necessary "for an adequate presentation of the evidence, particularly when serious issues of credibility are involved[.]" Id. at 529-30.
We are satisfied that Veston was afforded all due process protections required by Avant, supra, 67 N.J. at 525-33, that the hearing officer's decision was based on substantial evidence that Veston committed the prohibited acts, and that the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); N.J.A.C. 10A:4-9.15(a).