January 5, 2011
CARLOS CRUZ, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 November 30, 2010
Before Judges Carchman and Waugh.
Appellant Carlos Cruz appeals the final administrative action of respondent Department of Corrections (DOC), which imposed disciplinary sanctions pursuant to N.J.A.C. 10A:4-4.1. We affirm.
We discern the following facts and procedural history from the record.
At the time the underlying events took place, Cruz was an inmate at Bayside State Prison in Leesburg. He is serving a term of sixteen years with a mandatory minimum term of five years, eleven months and twelve days, for convictions involving distribution of drugs and aggravated assault.
Cruz is appealing the Department's decision rendered on November 24, 2009, imposing disciplinary sanctions upon him for committing prohibited acts *.803/*.002, attempt to commit an assault on any person, and .013, unauthorized physical contact with any person, all in violation of N.J.A.C. 10A:4-4.1(a).
On the evening of November 17, 2009, Cruz was packing up his personal property in anticipation of his transfer to a different housing unit. An altercation took place between Cruz and his cellmate, David Evans. According to Evans, the dispute concerned cigarettes and involved only pushing. Senior Corrections Officers Roman and Ricci reported that they observed Cruz punch and shove Evans, who did not retaliate. When Cruz was told to stop, he approached Ricci and stated: "This is bullshit!" He clenched his fist around what appeared to be a lock and drew back his left arm. Ricci blocked Cruz's arm, after which Ricci and Roman then restrained Cruz until additional officers arrived.
Cruz was initially charged with committing prohibited act *.002, assault of any person, with respect to Evans. He was also charged with committing prohibited act *.803/*.003, attempt to assault any person with a weapon, with respect to his conduct toward Ricci.
The matters were heard together because they arose out of the same incident. The hearing officer modified the *.002 charge involving Evans to an .013 charge, unauthorized physical contact, and also modified the *.803/*.003 charge involving Ricci to an *.803/*.002 charge, attempt to assault any person. The first hearing was scheduled for November 20, 2009, but was postponed because the hearing officer requested a psychological evaluation of Cruz.
Cruz requested and received the assistance of counsel substitute. On November 23, 2009, Cruz pled guilty to both of the modified charges.
Based upon the testimony and evidence presented at the hearing, Cruz was found guilty of both charges. On the .013 charge involving Evans, Cruz was sanctioned ten days detention, with credit for time served, ninety days administrative segregation and sixty days loss of commutation time. On the *.803/*.002 charge involving Ricci, Cruz was sanctioned fifteen days detention, 365 days administrative segregation and 180 days loss of commutation time, to run consecutive to the sanctions imposed on the .013 charge.
Cruz filed an administrative appeal of the hearing officer's decision on November 24, 2009, requesting leniency. Associate Administrator Charles Warren upheld the guilty finding, but modified the sanctions by suspending each of the sanctions imposed on the .013 charge for sixty days, while affirming the sanctions imposed on the *.803/*.002 charge involving Ricci.
This appeal followed.
On appeal, Cruz raises the following issues:
THE DECISION BELOW MUST BE REVERSED SINCE THE FINDING OF GUILT WAS NOT BASED UPON SUBSTANTIAL EVIDENCE IN THE RECORD AND CRUZ'S PROCEDURAL DUE PROCESS RIGHTS WERE VIOLATED.
Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).
We have considered Cruz's arguments in light of the record and applicable law. We conclude his arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). The DOC must facilitate an informal hearing to ensure that disciplinary findings are based upon verified facts and the use of discretion is informed by accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that DOC's regulations for disciplinary hearings "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.
Our review of the record leads us to conclude that the agency decision was supported by substantial evidence, including Cruz's plea of guilty, and that DOC's procedures comported with the appropriate level of due process. Avant, supra, 67 N.J. at 530; N.J.A.C. 10A:4-9.15(a). Substantial evidence is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).
The hearing officer's decision was based upon his evaluation of the credible evidence. That there may have been some inconsistencies was a matter for the hearing officer's determination. A basis for reversal does not exist because Cruz is now unhappy with the advice given by his counsel substitute. Cruz could have requested that the hearing officer be replaced, but chose not to do so.*fn1 Consequently, he waived his opportunity to raise the hearing as an issue.
Finally, we note that in his administrative appeal, Cruz sought only leniency, which he received to a limited extent. He did not contest his guilt, nor did he raise any issues with respect to the procedures of the hearing or the alleged impartiality of the hearing officer. He cannot raise such issues for the first time before us. State v. Robinson, 200 N.J. 1, 20-21 (2009).