April 13, 2010
JAMES MARTIN, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 23, 2010
Before Judges Messano and LeWinn.
James Martin is currently incarcerated at New Jersey State Prison in Trenton. He appeals from the final decision of the Department of Corrections (the D.O.C.) that found him guilty of disciplinary infraction, .709, failure to comply with a written rule or regulation of the correctional facility, N.J.A.C. 10A:4- 4.1. On appeal, Martin contends that he was deprived of his due process rights because the "inmate population was never given notice" that his conduct at issue "was a prohibited act." He also argues that the sanctions imposed "w[ere] excessive, unfair, and disproportionate to the sanctions imposed under similar circumstances . . . ."
We have considered these arguments in light of the record and applicable legal standards. We affirm.
In November 2008, the Special Investigations Division (SID) of the New Jersey State Police commenced an investigation of allegations of staff misconduct at the facility. SID discovered that a teacher's assistant at the facility, Q.M.-D., had, among other things, accepted personal cards and letters from several inmates. Among the various items was a computer-generated card, which Martin admitted sending to Q.M.-D., in which he expressed thanks for her condolences on the recent deaths of his son and other family members.*fn1
Martin was charged with disciplinary infraction *.306, conduct which disrupts institutional security. He was served with the charges on January 29, 2009, and counsel substitute was appointed. On February 4, the disciplinary hearing was completed, and Martin entered a plea of guilty to the less serious offense of failure to comply with a written rule, .709. See N.J.A.C. 10A:4-9.16 (permitting modification of the original charge). The hearing officer imposed the following sanctions: detention for ten days, with credit for time served; ninety days of administrative segregation; loss of sixty days of commutation time; and Martin was referred to the classification committee for a review of his work assignment. Martin's administrative appeal was denied, the disciplinary sanctions were not modified, and this appeal followed.
Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "It is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).
Martin does not contend that he was denied the due process rights accorded to inmates charged with disciplinary infractions. See, e.g., McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Rather, he argues that he was denied due process because he was not on notice that his conduct violated any of the institution's disciplinary rules.
However, as noted above, Martin pled guilty to the charge. To the extent he raised the issue of notice or in his administrative appeal, he clearly waived that argument by pleading guilty. Indeed, the adjudication report indicates that Martin's counsel substitute "request[ed] to have the charge modified to" the lesser charge, to which Martin then pled guilty.
Additionally, we reject the argument on its merits. The D.O.C. inmate handbook specifically advised that "[i]nmates must limit their contact with staff . . . to authorized and official interactions." "[U]nauthorized contact" subjected an inmate "to disciplinary action. Examples of . . . inappropriate contact . . . include[d], but [were] not limited to[,] giving or receiving favors, gifts, services, [or] displays of affection . . . ." The handbook clearly placed Martin and other inmates on adequate notice that such conduct was prohibited.
Martin also contends the sanctions imposed upon him for his violation were excessive. The permitted sanctions for non-asterisk disciplinary offenses are set forth in N.J.A.C. 10A:4-5.1(b). That regulation specifically provides: A finding of guilt in the case . . . shall render the offender subject to one or more of the following sanctions:
1. Up to 15 calendar days of Disciplinary Detention;
2. Loss of one or more correctional facility privileges up to 30 calendar days;
3. Up to 60 calendar days loss of commutation time, subject to confirmation by the Administrator;
4. Administrative Segregation for a specified time not to exceed 90 calendar days subject to confirmation by the Institutional Classification Committee;
5. Loss of furlough privileges for up to two months;
6. Up to two weeks confinement to room or housing area;
7. Any sanction prescribed for On-The-Spot Correction (see N.J.A.C. 10A:4-7);
9. Up to 14 hours extra duty, to be performed within a maximum of two weeks;
10. Suspension of any one or more of the above sanctions at the discretion of the Disciplinary Hearing Officer or Adjustment Committee for 60 calendar days; and/or
11. Referral to the Mental Health Unit for appropriate care/treatment. [Ibid.]
Thus, the sanctions imposed were all permitted by the regulation. We accord deference to the discretionary exercise of the D.O.C.'s prerogatives in this regard, and we find no basis to conclude that the sanctions imposed demonstrate an abuse of that discretion.
To the extent Martin argues that his sanctions were "more harsh" than those imposed upon other inmates "based on the same factual scenario," we consider the argument to be without sufficient merit to warrant discussion. See R. 2:11-3(e)(1)(E). It suffices to say that there is no evidence in the record regarding the sanctions imposed upon other inmates, nor is there any evidence regarding the conduct of those inmates or their prior disciplinary histories.