August 12, 2010
JASON SOTO, APPELLANT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 June 23, 2010
Before Judges Chambers and Kestin.
Jason Soto, while an inmate at the Bayside Sate Prison, was charged with two disciplinary infractions under N.J.A.C. 10A:4-4.1 subsection .210, "possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels;" and subsection .305, "lying, providing a false statement to a staff member." Following a hearing, Soto was found to have committed the infractions charged.
The sanctions imposed by the hearing officer on the .210 charge were: fifteen days of detention, consecutive to a current detention Soto was serving; ninety days of administrative segregation, also consecutive; and sixty days loss of commutation time, suspended for sixty days. One of the sanctions imposed on the .305 charge, ninety days of administrative segregation, was consecutive to the sanction on the .210 charge. The remaining sanctions on the .305 charge were fifteen days of detention and sixty days' loss of commutation time, suspended for sixty days. The brief filed by the Department of Corrections states that "[t]he effect of suspending a sanction is that if [the inmate] remains charge free for sixty days, he will not have to serve that portion of his sanction."
Soto filed an internal appeal from the disciplinary decision of the hearing officer. On that appeal, the decision was upheld.
On appeal to this court, Soto argues that the decision was not based on substantial credible evidence, that the charges did not fit the alleged infractions, that he was misled regarding procedures to be followed, that the credibility of those who wrote the charges is questionable, and that the sanctions were excessive in the light of the facts. Following receipt of the Department's answering brief, Soto filed a reply brief responding to the Department's contention that the arguments he advances on appeal had not been raised below, and presenting further argument on the points raised on appeal. To the extent, however, that the reply brief, and the addendum to it filed pursuant to leave granted, raise new arguments not framed in the main brief on appeal, those points may not be considered. See Pressler, Current N.J. Court Rules, comment on R. 2:6-5 (2010) (citing cases regarding "the impropriety of using a reply brief to add issues not theretofore raised").
The factual issues stemmed from an instance in which Sergeant Morgan observed Soto walking from the East Arcade area towards the housing units. Soto was carrying a roll of toilet paper and a plastic bag that, on inspection, was found to contain a Rubbermaid plastic bowl with a lid. Morgan reported that, when asked why he had the items, Soto responded that he had "left the bowl down there yesterday." In the disciplinary report, the sergeant stated: "Inmates are not permitted to take plastic bowls to their job assignment" and that "[t]he items were confiscated." In response to Morgan's inquiry, Soto also stated that he had permission from Senior Corrections Officer Wokock to take the items from his work area. Wokock, on inquiry, denied having given such permission.
As a consequence of these events, Morgan filed the .210 charge, and Wokock filed the .305 charge. In the ensuing hearing, Soto was granted the opportunity to frame confrontation questions regarding prison procedures, which he addressed to Sergeant Cossaboon. After reviewing the charges and the charging officers' statements, the answers to the confrontation questions, and Soto's statements and arguments, as well as those of his counsel substitute, the hearing officer found that the infractions charged had occurred.
In reviewing an administrative determination, we are governed by the substantial evidence rule. "Substantial evidence" has been defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (1956) (relied upon in In re Public Service Elec. & Gas Co., 35 N.J. 358, 376 (1961)). We are to affirm where the findings of fact, and the conclusions that flow from them, are supported by substantial evidence. See, generally, In re Taylor, 158 N.J. 644, 655-58 (1999); Clowes v. Terminix Int'l., Inc., 109 N.J. 575, 587 (1988); see also Jacobs v. Stephens, 139 N.J. 212, 223- 24 (1995); McDonald v. Pinchak 139 N.J. 188, 209-11 (1995). We normally do not make independent credibility determinations. See State v. Locurto, 157 N.J. 463, 471 (1999).
We are also governed by the concept of deference to the expertise of the agency involved, see Morris County v. Skokowski, 86 N.J. 419, 424 (1981), with due regard for its special perspectives and its "expertise and superior knowledge of a particular field." See Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).
Our review of the record in the light of the arguments advanced by the parties discloses that, in this disciplinary proceeding, Soto was afforded all process he was due. See Avant v. Clifford, 67 N.J. 496, 529-32; see also McDonald v. Pinchak, supra, 139 N.J. at 205-11; Jacobs v. Stephens, supra, 139 N.J. at 220-22. The hearing officer's findings and conclusions are supported by substantial evidence in the record, and the sanctions imposed are within both regulatory bounds and the Department's discretion. See N.J.A.C. 10A:4-5.1, -5.3. None of the arguments made has sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(D), (E).
In reaching these conclusions, we have fully considered the arguments Soto has advanced in his brief on appeal. We have not disregarded any that the Department contends should not be considered because they were not raised below.
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