On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2010
Before Judges Carchman and Messano.
Isaac Jones appeals from the final decision of the Department of Corrections (DOC) adjudicating him guilty of committing prohibited act *.011, "possession or exhibition of anything related to a security threat group." See N.J.A.C. 10A:4-4.1(a).*fn1 We have considered the arguments raised and affirm.
On May 29, 2009, Jones was an inmate at Bayside State Prison. During a routine search of his cell, officers discovered various letters and envelopes in his locker believed to be related to gang activity. On May 30, DOC served its disciplinary charge upon Jones, and he was placed in pre-hearing detention. On June 1, Senior Investigator Matthew J. Clark of the Special Investigations Division (SID), an expert in gang activity, reviewed the material and concluded it was related to a security threat group, specifically, the "Blood[s]." After two delays required by additional investigation, a disciplinary hearing was conducted on June 4.
Represented by counsel substitute, Jones explained that he had discovered his "teenage son was involved with a gang," and the documents reflected his attempt to "reach out to others to try to secure his [son's] extrication from the group." Counsel substitute argued that Jones's conduct was "a technical violation at best." The hearing officer reviewed the actual documents to see if they were "consistent" with this explanation, but determined that there was neither "content nor context for such a conclusion." The hearing officer accepted Clark's opinion regarding the documents and determined the charge was "sufficiently substantiated." He imposed various sanctions, including 15 days detention with credit for time served, loss of 365 days of commutation credit, 365 days of administrative segregation, and loss of recreation privileges for 30 days.
Jones's administrative appeal sought leniency. He expressed remorse for this "technical mishap," and requested "a moderate decision" regarding the sanctions imposed. The associate administrator of the facility upheld the decision of the hearing officer, and determined "the sanction[s] imposed w[ere] proportionate to the offense." This appeal followed.
Specifically citing N.J.A.C. 10A:4-9.7 and 10A:4-9.8, Jones contends that DOC "violated [his] procedural due process [rights]" by delaying the hearing. Citing N.J.A.C. 10A:18-2.16, he also contends that DOC was not permitted to read his mail without prior authorization from the prison administrator. Jones further claims that the sanctions imposed were excessive.
In his reply brief, Jones also argues that DOC's decision was not supported by "substantial credible evidence."
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)). Furthermore, "'[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)).
Jones did not raise the procedural argument regarding the delay in his disciplinary hearing or challenge the seizure of the correspondence during the administrative proceedings. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting "appellate courts will decline to consider questions or issues not properly presented" below). We accept that his explanation of the documents offered at the hearing was a challenge to DOC's interpretation of the letters and envelopes, and, in that sense, he contested the sufficiency of the evidence against him; Jones also challenged the sanctions imposed. After a thorough review of the record, however, we are convinced that Jones was accorded his full panoply of due process rights, that DOC did not violate its own regulations, that the agency's decision was supported by substantial credible evidence, and that the sanctions imposed were within the broad discretion afforded DOC.
Inmates confined to pre-hearing detention are entitled to a disciplinary hearing "within three calendar days," though "reasonable postponements" are permitted. N.J.A.C. 10A:4-9.8(c). Hearings that are already postponed for further investigation shall be reviewed within 48 hours "to determine if an additional postponement is warranted." N.J.A.C. 10A:4-9.7(a)(1). "The failure to adhere to any of the time limits[,] [however] . . . shall not mandate the dismissal of a disciplinary charge." N.J.A.C. 10A:4-9.9(a).
Here, the disciplinary charges were served on May 30, and the initial disciplinary hearing was scheduled for June 1. The hearing officer subsequently noted that the adjournments to June 2, and then to June 4, were required by the "need [for] SID evidence assessment." We conclude that the regulations permit such flexibility under ...