On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Grall and LeWinn.
Appellant is currently confined at New Jersey State Prison (NJSP) in Trenton. He appeals from the January 30, 2009 final agency decision of the Department of Corrections (DOC), upholding the hearing officer's adjudications finding him guilty of two disciplinary infractions, *.101, escape, and *.009, unauthorized possession of a cell phone, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
The facts adduced before the hearing officer established the following. On December 11, 2008, appellant was a resident in Tully House, a Residential Community Release Program under the jurisdiction of the DOC. At approximately 4:45 a.m., a counselor went to awaken appellant to get ready for a dental appointment. The counselor noticed a cell phone on appellant's pillow at that time. Two hours later, appellant was called to the reception area to be transported to his appointment, and he was nowhere to be found. Appellant had escaped from Tully House; three weeks later on January 1, 2009, the local police department captured appellant and returned him to the custody of the DOC. Appellant admitted to the escape and to "not making any attempt to turn himself in."
Regarding the *.009 charge, appellant stated that he did not "know anything about any cell phone, it[']s a set up." He presented no witnesses and requested no witness confrontations on this charge. In adjudicating appellant guilty of the charge, the hearing officer relied upon (1) the report of the counselor that, when he entered appellant's room to awake him, he "noticed a cell phone sitting on [appellant's] pillow[,] . . . [and] then confiscated the cell phone" and advised his supervisor of his "findings"; (2) a photograph of the cell phone seized; and (3) a "seizure of contraband" report.
The hearing officer imposed the following sanctions. On the *.101 charge, appellant received fifteen days' detention; 365 days' administrative segregation; and 365 days' loss of commutation time. On the *.009 infraction, appellant received fifteen days' detention concurrent with the *.101 charge, and 365 days of administrative segregation and loss of commutation time which were consecutive to the *.101 sanctions, and a one-year loss of phone privileges.
Appellant filed an administrative appeal in which the only relief he sought was leniency with respect to the sanctions imposed. In affirming, the DOC Administrator found that the charges were "serious[,]" and that appellant "demonstrated very poor judgment [by his] escape and sever[e]ly worsened [his] situation." The Administrator found that appellant's request for leniency was "not supported by any mitigating circumstances[,]" and that he "must be held accountable for [his] actions."
On appeal, appellant contends that he was deprived of his due process rights because his hearing was postponed from January 12 to January 21, 2009, in violation of N.J.A.C. 10A:4- 9.8(b), which provides that an inmate "shall be entitled to a hearing within seven calendar days of the alleged violation, . . . unless such hearing is prevented by . . . reasonable postponements." Appellant also contends that he was denied due process because he was not afforded representation by legal counsel, in contravention of N.J.A.C. 10A:4-3.1(a)(7), which accords an inmate "the right to legal counsel from an attorney of [his] choice by interviews and correspondence[,] . . . [and] the right to receive help when it is available through a legal assistance program." Finally, appellant claims that he was denied due process by the DOC's failure to determine "[w]hether the sanction imposed was proportionate to the offense in view of the inmate's recent disciplinary history and present custody status[,]" and "[w]hether extenuating circumstances" were present, as required by N.J.A.C. 10:4-11.4(e)(3), (5).
We decline to consider appellant's first two points, as they were not raised below. Bryan v. Dep't of Corr., 258 N.J. Super. 546, 548 (App. Div. 1992) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). No compelling circumstances are presented here to warrant our departure from this rule.
With respect to appellant's third argument, he essentially raises two points: (1) the DOC Administrator improperly failed to take appellant's disciplinary history into account in assessing the sanctions imposed; and (2) N.J.A.C. 10A:4-4.1(a) was amended on August 3, 2009, to add the non-asterisk offense of .009A, prohibiting the possession of cell phones and other similar electronic equipment "by an inmate who is assigned to a Residential Community Release Program . . . ." 41 N.J.R. 2927(a) (2009).*fn1
Regarding the second point, appellant clearly received a penalty authorized by the New Jersey Administrative Code in effect on the date of his offenses and his administrative appeal. We find no basis to warrant retroactive application of the amendment to the Code.
Regarding appellant's first point, in light of the serious nature of the charges, particularly the escape charge, we find no basis to disturb the sanctions. Our review of these matters 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 ...