March 1, 2012
ANTHONY BOONE, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 February 15, 2012
Before Judges Hayden and Accurso.
This is a prison disciplinary appeal. Anthony Boone appeals from a December 29, 2010 final decision of the Department of Corrections (DOC), finding him guilty of disciplinary infraction charge .256, failure to obey a staff order, in violation of N.J.A.C. 10A:4-4.1. His sanction was time served in pre-hearing detention. We affirm.
Boone is incarcerated at East Jersey State Prison. According to the State's proofs, on December 19, 2010, at 5:20 p.m. Senior Corrections Officer (SCO) Moore ordered Boone, who was assigned to the Building Sanitation Unit (BSU), to clean a bathroom. Boone refused, becoming loud and saying that he was not going to do it, as it was "not his fucking job." As Boone became increasingly agitated, other inmates began to gather. SCO Moore called for a Sergeant and two Special Assignment Officers (SAs) to assist. Sergeant Alexander and two SCOs responded, handcuffing Boone and escorting him off the tier. Although Sergeant Alexander described Boone as "a little agitated" as he was being escorted to pre-hearing detention and saying that he "was going to show his ass," Boone went into the cell without incident.
Boone was charged with disciplinary infractions .256 and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. Boone was given timely written notice of the charges and afforded the assistance of counsel substitute. He did not enter a plea. After reviewing the evidence against him, Boone, through counsel substitute, withdrew his initial request for a polygraph examination, confrontation, copies of all remedy forms he wrote while housed on 2-Up, statements from witnesses, the December 19, 2010 pass list and investigation into certain alleged retaliatory actions against Boone by SCO Moore.
The disciplinary hearing was held on December 21, 2010. The Hearing Officer appears to have made an initial determination that there was insufficient evidence for the institution to proceed on the *.306 charge and dismissed it. Accordingly, the hearing proceeded on the .256 charge only. Boone declined to make an oral statement but submitted a written statement in which he admits receiving the order. Boone claims he responded by saying that he had an evening library pass for which he was gathering his papers and "asked" SCO Moore, "what you saying is that you are going to refuse me to attend my law library pass" for which he was thereafter "locked up." Boone also submitted the statements of six inmate witnesses, not all of which corroborated his version of events.
After considering the evidence, the hearing officer found Boone guilty and sanctioned him to the time he had already served awaiting the hearing in detention. Boone filed an administrative appeal. On December 29, 2010, the assistant superintendent of the prison upheld the hearing officer's determination, concluding upon his review of the evidence: that the officer clearly states he gave a direct order to the Appellant whereas the Appellant presents no evidence to support his claim of not having refused the order.
On this appeal, Boone contends that there was no substantial evidence before the hearing officer that SCO Moore issued a direct order that Boone disobeyed.
Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656; Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Agency decisions carry with them a presumption of reasonableness. City of Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it 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). If there is substantial credible evidence in the record to support more than one conclusion, the agency's choice will control. In re Vineland Chemical Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990); De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985). In such circumstance, we may not substitute our judgment for the agency's, even if we would have decided the case differently had we heard the evidence. Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 442-43 (App. Div. 2001).
The hearing officer in this matter determined that SCO Moore gave Boone a direct order to clean a bathroom. Although Boone contends on this appeal that SCO Moore never issued such an order, there is certainly substantial credible evidence in the record to support the hearing officer's finding. Substantial evidence is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Electric & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). Here, in addition to SCO Moore's statement, the record includes Boone's own statement admitting that SCO Moore directed him to clean the bathroom as well as the corroborating statements of two other inmates submitted by Boone.
Further, there is no genuine dispute that Boone objected to the order. Again, Boone's own statement admits that he objected to the order because it would mean foregoing his library pass. The only real dispute on the record is whether Boone refused the order. Boone contends that he did not refuse. SCO Moore reported that Boone refused, became loud and said that he was not going to do it, as it was "not his fucking job." When Boone became agitated and belligerent and other inmates began to gather, SCO Moore was required to call for back up. The responding sergeant reported that Boone was in his bed area, not the bathroom, and that he was agitated and threatening to "show his ass," as he was escorted off the tier.
Based upon our review of the record, we are satisfied that the reports and statements upon which the hearing officer and the assistant superintendent relied provided the necessary substantial evidence to support their findings on the .256 charge and that Boone was provided with all of the substantive and procedural due process to which he was entitled. McDonald v. Pinchak, 139 N.J. 188 (1995). We decline to address the new issue that Boone now raises that SCO Moore's order was improper as it denied Boone access to the law library. The failure to raise this issue before the hearing officer or in the administrative appeal precludes advancement of the issue on appeal as it is not properly before us. See State v. Robinson, 200 N.J. 1, 19-20 (2009).
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