DARLENE SHELTON v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4861-04T14861-04T1

DARLENE SHELTON,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

__________________________________

 

Submitted January 9, 2006 - Decided January 30, 2006

Before Judges Lintner and Gilroy.

On appeal from a Final Decision of the Department of Corrections.

Darlene Shelton, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief.)

PER CURIAM

Petitioner, Darlene Shelton, an inmate at Edna Mahan Correctional Facility for Women, appeals from a determination of the Department of Corrections (Department) finding her guilty of committing prohibited act *.005 (threatening another person with bodily harm or with any offense against his or her person or his or her property), in violation of N.J.A.C. 10A:4-4.1(a). She was sanctioned to fifteen days of detention with credit for time served and ninety days loss of commutation time. On administrative appeal, the hearing officer's findings and sanctions were upheld. We affirm.

On January 23, 2005, State Correction Officer (SCO) Peters heard and observed petitioner threaten inmate Ungerer with physical harm during a verbal confrontation between the two inmates. While attempting to separate them before physical contact, SCO Peters heard petitioner state to Ungerer: "[b]itch, I'm going to fuck your ass up. Stupid bitch say I won't." Petitioner was charged with prohibited act *.005, threatening another with bodily harm or with any offense against his or her person or property. On January 24, 2005, the Department conducted an investigation concerning the charge that included an interview of petitioner. Petitioner never requested that the investigator interview any other witnesses concerning the incident.

On January 25, 2005, an adjudication hearing was conducted. Petitioner requested and received counsel substitute, after which she pled not guilty. The hearing officer considered written reports, including that of SCO Peters concerning the incident charged. Petitioner was afforded the opportunity to confront and cross-examine the Department's witnesses, but she declined to do so. Nor did the petitioner request that any other witnesses to the incident, including inmate Ungerer, be produced at the hearing. Petitioner denied making the threat. Petitioner was found guilty of the prohibited act, and the hearing officer recommended sanctions of fifteen days of detention with credit for time served, and ninety days loss of commutation time. On January 26, 2005, petitioner administratively appealed the decision of the hearing officer. On appeal, she continued to deny the charge, but never claimed that she was denied the opportunity to produce or confront witnesses at the hearing. The decision of the hearing officer was upheld, and this appeal followed.

On appeal, petitioner argues: 1) that the hearing officer improperly denied her the opportunity to confront and cross-examine witnesses; 2) that the hearing officer improperly denied her request to produce inmate Ungerer, or a statement in lieu of her testimony; and 3) that the adjudication of guilt is unsupported by the evidence because there was never a finding of a physical altercation or fight between petitioner and the other inmate.

We have considered these contentions in light of the record and applicable principles of law, and reject them determining that they are without merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The decision of the Department is supported by substantial credible evidence in the administrative record. R. 2:11-3(e)(1)(D). We add the following comments.

Petitioner raises for the first time on appeal that she was denied the opportunity to confront and cross-examine SCO Peters, and denied the opportunity to produce inmate Ungerer or a statement in lieu of her testimony. Petitioner makes no claim that the issues were beyond the jurisdiction of the hearing officer or the prison administrator, such that she could not have raised the issues below.

"Normally, we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Borough of South River, 354 N.J. Super. 442, 456 (App. Div. 2002). Exceptions include when "the issue is of special significance to the litigant, to the public, or to the achievement of substantial justice, and the record is sufficiently complete to permit its adjudication." Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000). Another exception is when the questions "'raised on appeal go to the jurisdiction of the trial court.'" Brown v. Tp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.) (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)), certif. denied, 162 N.J. 131 (1999).

 
The issues of confrontation and production of witnesses do not concern the jurisdiction of the hearing officer or the Administrative Tribunal. Regulations provide the hearing officer with the authority to consider and allow, subject to certain guidelines, inmate requests for confrontation, and the presentation of evidence and witness testimony. N.J.A.C. 10A:4-9.13, and 10A:4-9.14. Nor does petitioner claim that the issues concern matters of great public interest. If petitioner had requested that SCO Peters or the other inmate appear at the hearing, the requests could have been addressed by the hearing officer. Because petitioner did not raise the issues below where they could have been addressed by the hearing officer, we deem her arguments concerning the right to confrontation and to produce witnesses waived. Moreover, we determine that petitioner was accorded the appropriate safeguards and protections during the proceedings in accordance with Avant v. Clifford, 67 N.J. 496, 522-30 (1975).

Affirmed.

(continued)

(continued)

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A-4861-04T1

January 30, 2006