May 19, 2010
TRAVIS MOORE, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2010
Before Judges Graves and J. N. Harris.
Appellant Travis Moore--incarcerated and serving an eight-year sentence at East Jersey State Prison (EJSP)--appeals from an adverse final administrative disciplinary determination of the New Jersey Department of Corrections rendered on January 16, 2009. Moore was found guilty of prohibited act *.005, N.J.A.C. 10A:4-4.1(a)(*.005) ("threatening another with bodily harm or with any offense against his or her person or his or her property"). After a comprehensive review of the agency's action, we affirm.
In late December 2008, prison officials at EJSP received information that Moore had written three intimidating letters to Rashida McKnight--the mother of Moore's child--containing threats of bodily harm. Among the statements contained in the correspondence were the following:
I will never let your sister raise my child, so the only one you [are going to] hurt is the kids. If I . . . get out and find you, I'll put both of [your] brains in [your] lap and if I get caught we [are] all going to hell and I'll be whooping your ass for [an] eternity.
I promise I [will] find you and I promise the shit I'm going to do [does not] only happen in the movies.
As God is my witness don't let me have to track you down . . . and I'll be in your house, waiting to run you over crossing the street, shooting you in the head while you [are] checking your mail.
On January 1, 2009, Moore was formally served with written charges, which resulted in reference to a hearing officer to consider the matter on January 8, 2009. A counsel substitute was provided to Moore at his request. The hearing was postponed until January 10, 2009, in order to investigate first whether Moore had been previously disciplined for writing the threatening letters. Ultimately, Moore entered a plea of not guilty and stated that the letters and allegations of threat-making were several months old, outdated, and had already been the subject of an adjudication at the Southern State Correctional Facility (SSCF).*fn1
After considering the letters, the report of a prison investigator, Moore's admissions regarding writing the letters, and with knowledge of an unrelated November 2008 disciplinary proceeding involving the same type of charge, the hearing officer found Moore guilty of prohibited act *.005, finding the "inmate's statements are definitely serious threats." Sanctions were meted out as follows: fifteen days detention; 365 days loss of commutation credit; and 365 days of administrative segregation.
Moore thereafter appealed the disciplinary action to the prison administrator. While conceding that he wrote some of the correspondence between one and twelve months prior to the hearing, and alleging that his situation was already reviewed by prison officials at the SSCF,*fn2 he argued that he was not given sufficient time to prepare and review the "insufficient" evidence in detail. He claimed that there was "obviously very sloppy investigative work." He asserted that the sanction was being written up even before he had the opportunity to give his statement to the hearing officer. Finally, he protested the "poor representation" he received from counsel substitute, including "not [being] properly advised of laws or rights."
After reviewing Moore's several arguments and the record presented, the Assistant Superintendent of the EJSP upheld the entirety of the findings and sanctions imposed by the hearing officer. The decision noted that Moore was admittedly the author of the letters and that there was "no documentation that this matter has ever been addressed before." Finding that "the sanction imposed was proportionate to the offense," the Assistant Superintendent declined to adjust the initial determination. This appeal followed.
Moore raises twelve separate (but with some overlapping) issues to this court, many that were not argued during the administrative proceedings. For example, he now complains that (1) he was prejudiced by not being given a hearing within three days pursuant to N.J.A.C. 10A:4:9.8(c); (2) he was denied the opportunity to review certain evidence and call witnesses in his defense; and (3) he was charged and sanctioned twice with the same evidence. The balance of Moore's arguments include his continued refrain that he was the victim of an incomplete investigation, suffered from the ineffective assistance of counsel substitute, and was prejudiced by the agency's consideration of an irrelevant and unrelated disciplinary matter. We have generously reviewed all of Moore's appellate arguments, and are firmly convinced that they lack sufficient merit to warrant full discussion in a written opinion. R. 2:11-3(e)(1)(E). We append just the following brief comments.
Our scope of review is constrained, and Moore's contentions are analyzed in accordance with that standard. Unless the agency's decision was arbitrary, capricious, unreasonable, or unsupported by credible evidence in the record, we must affirm. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
After an assessment of the record, we find that Moore received all of the procedural due process to which he was entitled under the principles of McDonald v. Pinchak, 139 N.J. 188, 202 (1995) and Avant v. Clifford, 67 N.J. 496, 552 (1975).
Moreover, N.J.A.C. 10A:4-9.9(a) provides that "[t]he failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." Under this regulation, the disciplinary hearing officer may, in his discretion, dismiss a charge because of a violation of time limits. The regulation provides, however, that such discretion shall be guided by the following pertinent factors: the length of the delay; the reason for the delay; prejudice to the inmate in preparing his defense; and the seriousness of the alleged infraction. In this case, there was no request for a dismissal, but it is plain, given the de minimis delay in the proceedings, the lack of any apparent prejudice to the inmate in preparing his defense, and the seriousness of the charge, that a dismissal would have been a clear abuse of discretion by the hearing officer.
The failure to raise the many freshly minted issues in the administrative tribunal precludes the advancement of those arguments on appeal. As these issues were not originally presented in the disciplinary proceeding, they are not properly before us. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).
Ultimately, we conclude that the agency's decision was not arbitrary, capricious, or unreasonable given the facts presented, and that the decision is supported by substantial credible evidence in the record as a whole. The tenor of the statements that Moore wrote would unquestioningly be deemed threatening by any reasonable person who read them. The sanctions that were imposed for these admitted writings are unexceptionable.