May 7, 2010
LIONELL G. MILLER, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2010
Before Judges Lihotz and Ashrafi.
Appellant Lionell G. Miller, a state prison inmate, appeals from a final decision of the Department of Corrections (DOC) upholding a hearing officer's finding that he committed the following infractions prohibited by N.J.A.C. 10A:4-4.1(a): two acts of assault, *.002; refusal to submit to a search, *.708; and conduct which disrupts or interferes with security or orderly running of the correctional facility, *.306.
On appeal, Miller argues he was denied his rights of due process. We have carefully considered defendant's contentions in light of the record and applicable law. We affirm.
On February 24, 2009, Miller was housed at Trenton State Prison. While moving from the prison's rotunda area to the mess hall, Correction Officer (CO) Perez pulled Miller from the line and requested him to produce his identification card. According to Miller, Perez had pulled him from line earlier that same morning. Miller was then told to keep his hands raised while Perez performed a pat search. When Perez started the pat down, Miller dropped his hands and began arguing with him.
CO Fry came to Perez's assistance. When Fry observed Miller's hands going into his pockets, he grabbed Miller's left hand and ordered him to place his hands behind his back. Miller refused, said "fuck you," and stood in a fighting position. Miller then punched Fry in the head and struck Perez. Miller resisted the efforts of several COs to subdue him. During this struggle, Miller also punched CO Nagy in the face. Finally, Miller was pushed to the ground and placed in handcuffs and leg irons.
Miller's conduct caused the initiation of an emergency, Code *33. All institutional personnel were required to stop until Miller was subdued. Once order was restored, COs Perez, Nagy and Fry reported to the medical department to assess their injuries. All three were taken to Robert Wood Johnson Hospital for evaluation and treatment.
The disciplinary review hearing began on February 27, 2009. Miller pled not guilty. His request for counsel substitute was granted. He was then granted an adjournment to review the surveillance video, provided to him that day. Miller objected, as the video did not include "Perez harassing him" earlier that morning.
A different hearing officer resumed the hearing on March 2, 2009. After considering all the testimonial and documentary evidence submitted, the hearing officer found Miller guilty of all infractions and recommended these sanctions: (1) for *.708, fifteen days detention, crediting time served, 365 days loss of commutation time, 365 days of administrative segregation and thirty-eight days loss of recreation privileges; (2) for each act under *.002, thirty days detention, crediting time served, 365 days loss of commutation time, 365 days of administrative segregation and thirty days loss of recreation privileges; and (3) for *.306, fifteen days detention, crediting time served, 365 days loss of commutation time, 365 days of administrative segregation and thirty-eight days loss of recreation privileges.
On March 5, 2009, Miller was transferred to the administrative segregation unit of East Jersey State prison. He maintains he was never informed of the March 2 hearing. Miller filed an institutional appeal from the hearing officer's adverse decision. On March 13, 2009, Assistant Superintendent J. Drumm upheld the hearing officer's determination and sanctions.
The breadth of the DOC's expertise and discretionary authority in day-to-day matters of prison operation, policy, regulation and administration deserve great deference, making our scope of review a narrow one. Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 67 (App. Div.), certif. denied, 162 N.J. 196 (1999). We must affirm unless the agency's decision was arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
Miller's multifaceted argument suggests he was not provided a written statement of the charges against him, was not permitted to attend the hearing, and did not request the counsel substitute who appeared on his behalf at the final hearing. Further, he suggests his review of the video was inconclusive as to the charges as it does not show him dropping his hands or placing them in his pockets, and that there is no evidence of assault, yet he was found guilty of assaulting two COs although three submitted reports. Miller asserts he has been a target of harassment and retaliation by the COs since 2006.
We reject Miller's suggestion that documents obtained following the hearing, if considered, would have proven he was a victim of harassment. This issue may not be raised for the first time on appeal, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and otherwise, the claim lacks merit. R. 2:11-3(e)(1)(E). A review of the letter from Miller and his family is not dispositive of the claims now raised.
Regarding Miller's procedural due process challenges, we agree these proceedings must afford prisoners certain procedural due process rights, including written notice of the charges twenty-four hours before the hearing, an impartial tribunal, 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, and a written statement of the evidence relied upon and the reasons for the sanctions imposed. Avant v. Clifford, 67 N.J. 496, 525-33 (1975). See also Jacobs v. Stephens, 139 N.J. 212, 217-22 (1995) (reaffirming these procedural protections). However, contrary to Miller's suggestion, prison disciplinary proceedings are "'not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.'" Avant, supra, 67 N.J. at 522 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2601, 33 L.Ed. 2d. 484, 494 (1972)).
The record reflects Miller received notice of the charges, was granted counsel substitute and provided a review of the evidence, including the various reports and the videotape. In fact, the final report concurs with counsel substitute's position that the video alone is inconclusive of the assault charges. Together, Miller and his counsel substitute reviewed the videotape. During the final hearing, counsel substitute appeared and offered Miller's defense. No witnesses were called and Miller declined to confront the DOC's witnesses. Contrary to Miller's contention, his counsel substitute prepared and presented his defense after consultation and review of all the records considered by the hearing officer. Finally, the hearing officer provided a detailed statement of reasons based upon the evidence reviewed.
Following our review of the record, we conclude the adjudication of the infractions was supported by substantial credible evidence. McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Jacobs, supra, 139 N.J. at 219; DeCamp v. N.J. Dep't of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006); see also N.J.A.C. 10A:4-9.15(a); In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956) (defining substantial credible evidence to mean "such evidence as a reasonable mind might accept as adequate to support a conclusion").
We also conclude that the disciplinary proceedings were conducted in accordance with all applicable due process requirements. Avant, supra, 67 N.J. at 522. Appellant's argument that he was deprived of his due process rights are belied by the record, and the DOC's decision was not arbitrary, capricious, or unreasonable.
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