JAMES COMER v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4895-07T24895-07T2

JAMES COMER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

 

Submitted March 24, 2009 - Decided

Before Judges Fuentes and Gilroy.

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

James Comer, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant James Comer appeals from the final decision of the New Jersey Department of Corrections (DOC), finding him guilty of committing prohibited acts *.004, fighting with another person, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On April 18, 2008, defendant was observed by Sergeant White, Senior Corrections Officer Stalling, and Corrections Officer Recruit Sebastian participating in a fight with other inmates in the dining room at the New Jersey State Prison, Trenton. A portion of the fight was captured on videotape. Because of the fight, institutional movements were halted, and inmate programs and activities were cancelled for that evening. On the following day, appellant was charged with committing the two prohibited acts.

Following a courtline hearing, at which appellant was provided assistance of counsel substitute and the right to confront witnesses, the hearing officer found him guilty of both charges and imposed sanctions. On the *.004 charge, appellant was sanctioned to fifteen days of detention, with credit for time served; 365 days of administrative segregation; 365 days loss of commutation time; and thirty days loss of recreation privileges. On the *.306 charge, the hearing officer imposed identical sanctions, and ran them consecutive to the sanctions imposed on the *.004 charge. On May 15, 2008, Assistant Superintendent Drumm affirmed.

On appeal, appellant argues that he was denied due process because the hearing officer's decision was not based on credible evidence in the record; and the imposition of sanctions on each charge violates the double jeopardy clause of this State's Constitution, N.J. Const. art. 1, 11.

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 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). 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. See generally 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 each of appellant's arguments in light of the record and applicable law. We are satisfied that the arguments are without merit. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Appellant argues that he was denied procedural due process, asserting that "the infractions for fighting and conduct which disrupts should be dismissed because of the lack of substantial evidence . . . ." We disagree. There is substantial credible evidence in the record supporting the DOC's factual findings based on the corrections officers witnessing appellant's participation in the fight.

Appellant also argues that the imposition of separate sanctions on each prohibited act violates the double jeopardy clause of the New Jersey Constitution. We reject this argument.

"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 questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

The administrative appeal procedures permit inmates to challenge the sanctions imposed for committing prohibited acts. See N.J.A.C. 10A:4-11.5(a)3 (permitting the Administrator to downgrade a sanction if his or her review on appeal "indicates that the sanction is disproportionate to the offense in accordance with factors enumerated in N.J.A.C. 10A:4-9"). Here, appellant did not challenge the imposition of separate sanctions in his administrative appeal. Accordingly, because the issue does not pertain to the jurisdiction of the administrative hearing or to a matter of great public interest, we will not consider the merits of the argument.

Affirmed.

(continued)

(continued)

5

A-4895-07T2

April 6, 2009