WARREN HALL 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NOT FOR PUBLICATION WITHOUT THE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-1865-09T3

WARREN HALL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________________________

May 9, 2011

Submitted January 12, 2011 Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the New Jersey Department of Corrections.

Warren Hall, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Andrea Silkowitz, Assistant Attorney General, of counsel; Anne Marie Kelly, Senior Deputy Attorney General, on the brief).

PER CURIAM

Defendant Warren Hall, an inmate at the Adult Diagnostic and Treatment Center (Treatment Center), appeals from an October 21, 2009 final administrative determination adjudging him guilty of prohibited act .402, being in an unauthorized area, N.J.A.C. 10A:4-4.1, and imposing a penalty of five days detention.

The incident giving rise to the administrative disciplinary charge occurred on October 15, 2009. At approximately 8:10 a.m., the 7th and 8th wings of Housing at the Treatment Center were called for medication in the medical unit. Senior Corrections Officer (SCO) Beard noticed Hall, who lives on 8L, coming back from medication before his wing was called. According to Hospital Officer Dominguez, Hall did not have an appointment before the time his wing was called that morning.

A hearing was held on October 21, 2009. Hearing Officer Ozsvart found Hall guilty of charge .402. Hall's defense at the hearing was that the third shift wing officer told him to go to the medical unit, however, during the investigation of this matter, Hall admitted to SCO Beard that the inmate wing clerk told him to go down to the medical unit, and not the wing officer. This appeal followed.

On review, we must uphold a final agency decision unless it is arbitrary, capricious, unreasonable or unsupported by credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The relevant standard of review is "'whether the findings could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole . . . .'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotations omitted)). N.J.A.C. 10A:4-9.15(a) provides that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."

We find that the final administrative decision is supported by substantial credible evidence on the record as a whole. R. 2:11-3(e)(1)(D); Henry, supra, 81 N.J. at 579-80. Hall attests that the third shift officer in his wing told him at 5:30 a.m. to report to the medical unit at 8:00 a.m. In spite of that order, he followed the wing clerk's alleged order to go to the medical unit at 7:45 a.m. He submits that his explanation is corroborated in that, while in the medical unit, he received a flu shot and did not receive a charge by the medical officer for being in an unauthorized area. On the other hand, Hall did not offer any evidence that the wing clerk was authorized to order him to go to the medical unit at the time which he went. He also was inconsistent in his explanation of who ordered him to the medical unit. Further, the medical officer confirmed that Hall did not have an appointment at the time at which he went to the medical unit.

Moreover, Hall received all of the procedural due process to which he was entitled. McDonald v. Pinchak, 139 N.J. 188, 194 (1995); Avant v. Clifford, 67 N.J. 496, 522 (1975). Hall received notice of the charge against him at least twenty-four hours prior to the hearing, a corrections officer conducted an investigation that same day, and an impartial tribunal conducted the hearing concerning the alleged infraction.

Finally, Hall argues for the first time on appeal that he did not know the first floor hallway, where he was found, was an unauthorized area. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the [tribunal below] when an opportunity for such a presentation is available . . . ." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because Hall's claim does not raise questions of "'the jurisdiction of the trial court or concern matters of great public interest,'" it will not be considered. Ibid. (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). The sanction was properly imposed.

A