January 23, 2012
HORACE GLENN, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012 -
Before Judges Baxter and Nugent.
Appellant Horace Glenn appeals from the final administrative decision of respondent Department of Corrections (the Department), disciplining him for infraction .402, being in an unauthorized area, in violation of N.J.A.C. 10A:4-4.1. We affirm.
The record discloses the following facts and procedural history. Glenn
is an inmate at the Adult Diagnostic and Treatment Center (ADTC) in
Avenel, New Jersey. On July 28, 2010, during a medical emergency or
"Code 53," Glenn and another inmate attempted to walk from 5-wing
through the east sally port to the part of the facility that housed
the library. When Senior Corrections Officer (SCO) Billero*fn1
stopped Glenn at the sally port and asked where he was going,
Glenn replied that he was going to the library and that the librarian
had given him permission. Because Glenn had no pass from the 5-wing
officer, Corrections Officer (CO) Santana, and was not on the "inmate
pass locator," Billero called Santana. Santana denied permitting Glenn
to move and said Glenn "left on his own." Later that day Glenn was
served with a disciplinary report charging him with infraction .402.
At the disciplinary hearing on August 3, 2010, the hearing officer considered Glenn's statement that "I told the [CO] I didn't hear the f--- code. I told him that [the librarian] and Officer Beard gave me permission to go. This where is [sic] a bad mistake. There was a miscommunication. We went out by mistake." The hearing officer interpreted Glenn's statement to mean that he spoke with the librarian on the day of the incident. The librarian was not at work on the day of the incident. The hearing officer offered Glenn the opportunity to confront the librarian, but he declined.
During the hearing Glenn requested a witness statement from CO Beard. The hearing officer was willing to adjourn the hearing to obtain a statement from Beard, but Glenn requested she speak with Beard quickly so that the hearing would not be postponed. The hearing officer also offered Glenn the opportunity "to have confrontation with Officer Beard prior to my speaking with the Officer and again after I spoke with the Officer." Glenn declined and said he wanted to continue with the hearing.
The hearing officer summoned Beard from his post to the disciplinary office where she asked him about the incident. Beard said he had spoken with Glenn the day before the incident, not the day of the incident. Beard also said that "when a code is going off the inmate is not suppose[d] to move." After speaking with Beard, the hearing officer returned to the hearing room and told defendant what Beard had said.
Based on that evidence, the hearing officer determined that Glenn was guilty of the infraction. As discipline, the hearing officer imposed ten days detention, sixty days loss of commutation time, twenty days loss of recreation privileges, and ninety days administrative segregation suspended for sixty days.
Glenn filed an administrative appeal to the Assistant Superintendent, contending that the hearing officer mistakenly inferred from his statement that he spoke to the librarian on the day of the incident. Glenn also maintained that the intercom system was broken and that no CO informed him that a medical emergency existed. Finally, Glenn argued that he was the target of selective enforcement because two other inmates who had also moved from their wing through the east sally port on the day of the incident had not been charged with disciplinary infractions. The Assistant Superintendent upheld the hearing officer's decision. The "Disposition of Disciplinary Appeal" form states: "There was compliance with Title 10A provisions on IM discipline which prescribe procedural due process safeguard[s]. The decision of the Hearing Officer was based on substantial evidence." This appeal followed.
Defendant raises the following points in this appeal:
THE FACTS ARE THAT THIS INSTITUTION DOES NOT HAVE AN INTERCOM SYSTEM, OR (THE SYSTEM IT DOES HAVE IS BROKEN). HOW CAN AN INMATE BE HELD RESPONSIBLE FOR NOT MOVING DURING A CODE, WHEN HE DOES NOT HAVE THE PROPER INFORMATION THAT A CODE WAS CALLED?
THE H.O. PURPOSELY MISINTERPRETED THE FACTS AS SUPPLIED BY THE APPELLANT. IN THE MISINTERPRETATION OF THE FACTS, THE H.O. EXHIBITS BIAS AND PREJUDGMENT.
IT IS CLEAR THAT BECAUSE THE INTERCOM SYSTEM HAS NOT AS OF YET BEEN REPAIRED AND THE FACT THAT IT HAS BEEN MORE THAN SIX MONTHS; THERE SHOULD BE SOME NEW RULE OR REGULATION TO PROPERLY DEAL WITH THIS SITUATION.
THE CHARGES IN THIS INSTANCE, WERE IN RETALIATION FOR THE EXERCISE OF A CONSTITUTIONALLY PROTECTED RIGHT.
EVEN IF THE COURT DETERMINED THAT THE ADMINISTRATION SATISFIED DUE PROCESS REQUIREMENTS, "RIGHTNESS, AND FAIRNESS" REQUIRES CERTAIN MODIFICATIONS.
The scope of our review of an agency decision 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)). Substantial evidence means "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) (internal quotations and citations omitted). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).
When reviewing a determination of the Department in a matter involving prisoner discipline, we consider whether there is substantial evidence that the inmate committed the prohibited act and whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995).
The Department's decision was supported by substantial evidence. Glenn admitted that he attempted to move from his wing through the sally port to the library. When Glenn was stopped at the sally port, he had no pass from the 5-wing officer and his name was not on the inmate pass locator. Although he claimed that the librarian and CO Beard had given him permission to go to the library, their statements contradicted Glenn's assertions. Notably, Glenn refused the hearing officer's offer to permit him to confront both witnesses.
Glenn did not raise before the hearing officer his contentions about the intercom system or his contention that the disciplinary charges were filed in retaliation for his work as chairman of the Inmate Liaison Committee and his prior complaints about SCO Billero. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available" unless the matter involves the trial court's jurisdiction or is of public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because Glenn's arguments were not raised at the disciplinary hearing and do not involve jurisdiction or matters of public importance, we will not consider them. Cf. State v. Arthur, 184 N.J. 307, 327 (2005) (declining to review a defendant's post-conviction relief claims that defendant failed to raise during his argument at the hearing or in his petition for relief).
We reject Glenn's argument that the hearing officer purposely misinterpreted facts and demonstrated bias. There is no evidence to support the former assertion. As to the latter assertion, far from demonstrating bias, the hearing officer afforded Glenn every opportunity to present his defenses, including the opportunity to postpone the hearing, obtain an additional witness statement, and confront Beard and the librarian. We find no merit in Glenn's contention and we conclude that the department satisfied defendant's due process rights. See Avant v. Clifford, 67 N.J. 496 (1975).