September 14, 2012
JUAN QUINONES, APPELLANT,
THE 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 August 27, 2012
Before Judges Nugent and Ostrer.
Appellant Juan Quinones, an inmate at the Adult Diagnostic and Treatment Center in Avenel (ADTC), appeals from a final decision of the Department of Corrections (DOC) finding him guilty of committing prohibited act .256, "refusing to obey an order of any staff member." N.J.A.C. 10A:4-4.1. As a result of the violation, Quinones received a sanction of fifteen days' detention, ninety days' administrative segregation, sixty days' loss of commutation time, fourteen hours of extra duty, and fifteen days' loss of recreation privileges. We affirm.
These are the facts concerning Quinones' violation. On May 23, 2011, at approximately 1:30 p.m., Quinones was working as a line server in the facility's kitchen. At that time, Institutional Trade Instructor (ITI) Andrew Dorfman told Quinones "that before he leaves the kitchen . . . he has to check with me." Quinones responded, "No I don't," and left the kitchen. Dorfman charged Quinones with a .256 violation for refusing to obey Dorfman's order, and Quinones was placed on "lay-in" pending adjudication of the charges.
The next day, May 24, 2011, Sergeant Brown*fn1 served the charge on Quinones and investigated the incident. Quinones declined to make a statement, deciding to reserve any statement for a hearing. He did not identify any witnesses to the incident.
Following two postponements, a hearing took place on June 8, 2011. Quinones pled not guilty. He did not request counsel substitute. The hearing officer considered Dorfman's statement and report concerning the incident, and the following statement from Quinones: "I asked if I could leave. The C/O told me to wait. The ITI said I didn't ask him if I could leave. I told him I didn't have to. He wrote me up." Quinones declined to name any witnesses and declined the opportunity to confront or cross-examine adverse witnesses. After evaluating the evidence, the hearing officer found Quinones guilty of the .256 charge.
Following the hearing, the hearing officer prepared an "Adjudication of Disciplinary Charge" report that states defendant did not request counsel substitute, declined to name any witnesses, and declined to confront or cross-examine adverse witnesses. Defendant signed the report beneath the acknowledgement that it "accurately reflect[ed] what took place at the disciplinary hearing."
On June 9, 2011, Quinones filed an administrative appeal of the hearing officer's decision. The administrator upheld the decision of the hearing officer, finding that Quinones had been afforded procedural due process and that the decision of the hearing officer was supported by substantial evidence. This appeal followed. Quinones raises the following issues:
THE CERTIFICATION OF INDIGENCY PROVIDES THAT THE APPELLANT IS INDIGENT AND SETS FORTH THE FACTS IN THE CERTIFICATIONS OF INDIGENCY INCLUDED IN THE MOTION PAPERS PURSUANT TO [RULE] 2:7-1.
THERE WAS A VIOLATION OF DUE PROCESS IN THAT THE APPELLANT WAS NEVER TOLD THAT HE COULD REQUEST A PARALEGAL TO REPRESENT HIM IN THIS MATTER. HE WAS NOT TOLD THAT HE HAS A RIGHT TO CALL WITNESSES, NOR WAS HE TOLD [THAT] HE HAD A RIGHT TO CONFRONTATION WITH ADVERSE WITNESSES.
THE APPELLANT REQUESTED OF THE ASSISTANT SUPERINTENDENT A REMAND OF THE CHARGES SO THAT THE WITNESS['S] STATEMENT COULD BE TAKEN INTO CONSIDERATION AND THAT THE APPELLANT COULD ALSO CALL AND QUESTION ADVERSE WITNESSES.
THE D.H.O. FAILED TO PROVIDE AN ADEQUATE WRITTEN STATEMENT OF REASONS AS TO WHY SHE FOUND THE APPELLANT GUILTY. THE D.H.O.'S REASONING LACK[ED] LEGALLY BINDING CONCLUSIONS. THE ASSISTANT SUPERINTENDENT ALSO LACKED LEGALLY BINDING CONCLUSIONS AS TO WHY HE WAS UPHOLDING THE CHARGE.
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 quotation marks and citations omitted).
When reviewing a determination of the DOC in a matter involving prisoner discipline, we also consider whether, in making its decision, the DOC followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995). Prison disciplinary hearings are not criminal prosecutions, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Nevertheless, prisoners are entitled to certain limited protections prior to being subject to disciplinary sanctions. These rights include: (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal that may consist of personnel from the central office staff of the Department of Corrections; (3) a limited right to call witnesses and present documentary evidence in defense of the charges; (4) a limited right to confront and cross-examine adverse witnesses; (5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and (6) where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel substitute. Id. at 525-33. See also McDonald, supra, 139 N.J. at 194-95.
We first address defendant's argument that he was denied due process because he was not informed of his right to counsel substitute, and was not informed of his right to call witnesses on his behalf and confront adverse witnesses.
The procedural safeguards afforded a prisoner facing disciplinary hearings are codified in N.J.A.C. 10A:4-9. N.J.A.C. 10A:4-9.12 provides:
(a) When an inmate has been charged with an asterisk offense, the inmate shall be afforded the right to request representation by a counsel substitute.
(b) When the Disciplinary Hearing Officer or Adjustment Committee determines that an inmate is illiterate or cannot adequately collect and present the evidence in his or her own behalf, the inmate may elect to receive the services of a counsel substitute or the inmate may request representation by a staff member.
(c) Where the inmate requests the services of a staff member, the Administrator or designee may appoint a staff member to provide representation.
(d) The counsel substitute shall be permitted reasonable time to speak to the inmate and shall be given at least 24 hours to prepare the inmate's defense.
(e) If necessary, the inmate shall be allowed to present a defense through an interpreter.
The reference in N.J.A.C. 10A:4-9.12 to "asterisk offense[s]" refers to those prohibited acts contained in N.J.A.C. 10A:4-4.1 that are preceded by an asterisk and "are considered the most serious and result in the most severe sanctions . . . ." N.J.A.C. 10A:4-4.1(a).
The charge against defendant, N.J.A.C. 10A:4-4.1(a).256, refusing to obey an order of any staff member, is not an asterisk offense. Moreover, the charge was not complex; defendant was accused of disregarding a straightforward and direct order of the ITI. The ITI reported that he told Quinones to check with him before Quinones left. The ITI further reported that Quinones said he did not have to check with the ITI and left. There was nothing complicated about either the ITI's command or the defense, namely, that defendant was not required to obey the order. Defendant does not allege that he was illiterate, that for some reason he could not understand the charges against him, or that he requested representation by counsel substitute. Under those circumstances, his right to due process of law was not violated when he attended a hearing on the uncomplicated, non-asterisk disciplinary charge, without representation.
We also reject defendant's argument that he was denied his right to present witnesses and confront witnesses against him; and that his administrative appeal should have been remanded so that he could submit a witness statement*fn2 and question adverse witnesses. Defendant was afforded those opportunities at the disciplinary hearing as evidenced by the adjudication report. We decline to further consider those issues. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("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 [was] available . . .").
Defendant's remaining arguments do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).