AKIEM BROOKER 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NOT FOR PUBLICATION WITHOUT THE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-3518-09T1

AKIEM BROOKER,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________

Submitted May 4, 2011 Decided May 12, 2011

 

Before Judges Lihotz and J. N. Harris.

 

On appeal from the New Jersey Department of Corrections.

 

Akiem Brooker, 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

Appellant, Akiem Brooker, appeals from a final decision of the Department of Corrections (the Department) that found him guilty of committing prohibited act *.101, escape, in violation of N.J.A.C. 10A:4-4.1(a)(*.101). We affirm.

For several years prior to May 14, 2008, Brooker who had been convicted of crimes involving a controlled dangerous substance was committed to the Department's correctional facility at Northern State Prison (Northern State) in Newark. On that date, Brooker was transferred from Northern State to the Kintock Newark halfway house (Kintock), also located in Newark, to participate in a residential community release program. Several months later, Brooker enrolled in the Anthem Institute, a career-focused training school located in Jersey City, to which he commuted from Kintock on each school day, returning each afternoon after classes ended.

On April 10, 2009, Brooker did not return to Kintock after school. His absence was noted by 4:50 p.m. when telephone calls were made to local police and hospitals inquiring of his whereabouts. By 5:30 p.m., Northern State was notified, and Brooker was "placed on escape." Three days later, the Northern State Administrator issued an escape warrant ordering the arrest of Brooker anywhere in the state.

Although Brooker did not provide a written or oral statement at the time of his disciplinary hearing, and ultimately entered no plea to the disciplinary charge, he contends on appeal that he did not return to Kintock because he had been arrested in Jersey City based upon "outstanding traffic tickets . . . [that] were seventeen years old." He further admits that after posting bail, he still did not return to Kintock, and was subsequently re-arrested on unrelated charges on June 30, 2009. He claims to have been incarcerated thereafter in the Hudson County Correctional Center for seven more months, when on January 7, 2010, he was returned to Northern State. A day later, he was served with the instant disciplinary charges relating to the escape.

The disciplinary hearing was conducted on January 13, 2010, at which time neither Brooker nor his counsel substitute offered any evidence. The hearing officer found Brooker guilty of prohibited act *.101, escape, and imposed sanctions of 365 days of administrative segregation, 365 days of loss of commutation time, and fifteen days of detention.

Brooker timely filed an administrative appeal, requesting among other things, "any leniency possible due too [sic] amount of time in custody before infraction." As a result of that appeal, the Department modified the hearing officer's imposition of sanctions by suspending the 365 days of administrative segregation, but otherwise sustained the balance of the penalties. This appeal ensued.

Brooker raises several discrete issues on appeal, most of which were not presented during the administrative proceedings. For example, he now complains that (1) he was prejudiced by a delay in being served the disciplinary charges, measuring the interval from the second time he was arrested (June 2009) until he was returned to Northern State (January 2010); (2) he was charged and sanctioned twice with the same evidence by the Department and the New Jersey Parole Board; (3) he was denied an adjournment by the hearing officer; (4) he was deprived of his personal property, which he needed to defend himself; and (5) he was refused the right to present "contradicting evidence that would have discerned a correct factual basis for the finding in the disciplinary hearing." The balance of Brooker's arguments includes his continued refrain that he was the victim of numerous constitutional torts committed by various prison officials. We have charitably reviewed all of Brooker's appellate arguments, and are satisfied that they lack sufficient merit to warrant full discussion in a written opinion. R. 2:11-3(e)(1)(E). We append just the following brief comments.

Our scope of review is limited, and Brooker's contentions must be analyzed in accordance with that standard. In

re Stallworth, ___ N.J. ___ (2011) (slip op. at 13); Moore v. Dep't of Corr., 335 N.J. Super. 103, 110 (App. Div. 2000). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, supra, slip op. at 14 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

After an assessment of the record, we find that Brooker received all of the substantive and procedural due process to which he was entitled under the principles of McDonald v. Pinchak, 139 N.J. 188 (1995) and Avant v. Clifford, 67 N.J. 496 (1975). Moreover, N.J.A.C. 10A:4-9.9(a) provides that "[t]he failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." Under this regulation, the disciplinary hearing officer may, in his discretion, dismiss a charge because of a violation of time limits. The regulation provides, however, that such discretion shall be guided by the following pertinent factors: the length of the delay; the reason for the delay; prejudice to the inmate in preparing his defense; and the seriousness of the alleged infraction.

In this case, there was no request for a dismissal, but it is plain that Brooker's arrest and subsequent incarceration in the Hudson County Correctional Center is not attributable to the Department. Not only is there no evidence that the Department was aware of where Brooker was located following the June 2009 arrest, but Brooker himself never advised the Department of his circumstances. Thus, any delay in serving the disciplinary charges is both irrelevant to his due process rights, and is largely attributable to his own inaction.

Brooker's claims of misconduct by the hearing officer were never mentioned when he administratively appealed the finding of guilt and sought only leniency in the imposition of the sanctions. The failure to raise the many freshly minted issues in the administrative appeal process precludes the advancement of those arguments on appeal. As these issues were not originally presented in the disciplinary proceeding, they are not properly before us. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

U

ltimately, we conclude that the Department's decision was not arbitrary, capricious, or unreasonable given the facts presented, and that the decision is supported by substantial credible evidence in the record as a whole. The sanctions that were imposed for prohibited act *.101, escape, are unexceptionable. See N.J.A.C. 10A:4-4.1(a) ("Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions.").

Affirmed.