ROBERT LEE TERRY 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NOT FOR PUBLICATION WITHOUT THE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-5661-10T4

ROBERT LEE TERRY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________

April 3, 2013

Submitted December 12, 2012 - Decided

Before Judges Grall and Accurso.

On appeal from the New Jersey Department of Corrections.

Robert Lee Terry, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).

PER CURIAM

Robert Terry, an inmate confined at New Jersey State Prison, appeals from a final decision of the Department of Corrections finding he committed prohibited act .053 "indecent exposure" in violation of N.J.A.C. 10A:4-4.1(a). He was sanctioned to fifteen days' detention, ninety days' administrative segregation, sixty days' loss of commutation time, and thirty days' loss of recreational privileges. On appeal, Terry claims he was denied his right to confront his accusers. We affirm.

According to the Department's proofs, Senior Corrections Officer (SCO) Bonnie Sides was in the control booth when she saw Terry standing at his cell window, watching her and masturbating. She immediately contacted Sergeant Mark Perkins who reported to the control booth. He observed Terry at his cell door engaged in the same activity.

Terry was given timely written notice of the charge and afforded the assistance of counsel substitute. He entered a plea of not guilty, but made no statement to the investigator, and offered no witnesses. The hearing officer denied his request to confront SCO Sides and Sgt. Perkins on the basis that their testimony would likely be repetitive.1 After considering the evidence, the hearing officer found Terry guilty and imposed sanctions. In her decision, the hearing officer also noted that Terry's confrontation questions were "of concern." She noted one in particular, in which Terry implied that the officer continued to stare at him after he exposed himself to her. Terry filed an administrative appeal to the prison administrator who upheld the finding and the sanction.

Terry filed a timely appeal to this court. We granted the Department's motion to remand for a new hearing to allow Terry the opportunity to confront Sides and Perkins.

At the remand hearing, Terry testified that the unit was cold, and he had his hands inside his sweat pants because the pants did not have pockets. He also claimed that the officers "set him up." Terry claimed that he was sitting on his bunk until SCO Sides walked into his view and "let down her incredibly long hair," as if "on a flagpole." In his brief, Terry elaborated upon his contention, claiming that Sgt. Perkins must have been hiding in the sallyport, waiting until Terry was lured to his door, so as to allow Perkins to corroborate Sides's account.

Sides and Perkins both testified at the remand hearing, and answered the confrontation questions put to them by the hearing officer. Their testimony was consistent with their prior statements. The hearing officer found their testimony "clear, concise and credible." She disallowed questions from Terry she found "irrelevant, inappropriate or repetitive." The hearing officer also rejected Terry's request to question the officers who escorted him off the unit because they "had nothing to do with the actual charge." The hearing officer found Terry guilty and imposed the same sanction. The administrator upheld the decision and the sanction.

Although Terry raised several issues in his notice of appeal, the only one addressed in his brief is the denial of his right to confront his accusers.2 We reject this claim as we are satisfied that the Department substantially complied with the procedural requirements set forth in Avant v. Clifford, 67 N.J. 496, 525 33 (1975), and N.J.A.C. 10A:4-9.1 to -9.28.

Sides and Perkins both testified at the remand hearing. The hearing officer reviewed Terry's confrontation questions and asked those she found relevant. N.J.A.C. 10A:4-9.14 provides a hearing officer broad discretion in determining the scope of confrontation and cross-examination in prison disciplinary appeals. Negron v. N.J. Dep't of Corr., 220 N.J. Super. 425, 430 (App. Div. 1987). The hearing officer asked those questions that went to what each officer saw, and could see, how Sides advised Perkins of Terry's infraction, and how long it took Perkins to get back to the control booth after Sides contacted him. Terry was thus afforded a fair opportunity to develop his defense by probing any weakness in the charge, and to test the credibility of his accusers. See Jones v. Dep't of Corr., 359 N.J. Super. 70, 75-76 (App. Div. 2003) (noting in-person confrontation and cross-examination preserve the fundamental opportunity to develop a defense and test credibility of witnesses). Having reviewed the questions submitted against those posed by the hearing officer, we are satisfied that she did not abuse her discretion in determining that Terry's remaining questions were irrelevant, likely to produce repetitive testimony, or inappropriate because either harassing or asked for some malicious purpose. See N.J.A.C. 10A:4-9.14(d). There was no reason to confront other officers who arrived on the scene only afterwards and thus did not witness any of the events at issue.

We have no question that the evidence was adequate to support the hearing officer's finding. The hearing officer determined that Sides and Perkins were credible witnesses after affording Terry the opportunity to test their credibility through confrontation and cross-examination. Terry has presented no basis to upset the agency's determination. See In re Musick, 143 N.J. 206, 216 (1996) (holding a determination of

an administrative agency will not be upset absent a showing that it was arbitrary, capricious, or unreasonable).

A

1 Defendant's request to confront another officer, SCO Clayton, who did not appear to have any involvement in this incident, was also denied.

2 We deem all other issues abandoned. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011).