COREY JETER 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NOT FOR PUBLICATION WITHOUT THE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-0

COREY JETER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________________

February 10, 2014

Submitted January 8, 2014 - Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from the New Jersey Department of Corrections.

Corey Jeter, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Corey Jeter is an inmate currently incarcerated at Northern State Prison in Newark. He appeals from a final administrative decision imposing disciplinary sanctions stemming from findings of a hearing officer that he violated prohibited acts, N.J.A.C. 10A:4 4.1(a) *.004, fighting with another person. We affirm.

The incident resulting in the disciplinary charge occurred on July 26, 2012, at The Harbor, a halfway house in Newark. On July 27, 2012, Assistant Supervisor Robert Felder received an anonymous tip that an altercation had occurred between Jeter and another inmate in Room 133 the previous day. An investigation into the incident revealed that Jeter had a small bandage next to his left eye covering a two to three-inch laceration. Jeter stated he cut himself in the yard by the workout bench and reported it to the staff. Additionally, Jeter told another supervisor he sustained the injury coming down the ladder of his top bunk. While Jeter denied fighting, he admitted that he had been involved in a verbal altercation with another inmate related to missing personal property. A medical evaluation documented a scratch and lump on the right side of Jeter's face. The other inmate involved, William Chamberlain, also appeared to have been in a fight, with puffiness observed on his face.

Jeter was served with the fighting charge and upon completion of an investigation, it was determined that the charge had merit. The matter was referred to a hearing officer for further action. Jeter presented statements from other inmates, and stated that he sustained his injuries while playing basketball and declined an offer to confront adverse witnesses.

The hearing officer found Jeter guilty relying upon the anonymous letter, Jeter's conflicting explanations for the cause of his injuries, and the fact that the other inmate with whom the altercation occurred also had visible injuries. The hearing officer imposed 15 days of detention with credit for time served, a 120-day loss of commutation time, and 90 days of administrative segregation. On appeal to the Assistant Superintendent, Jeter argued that the hearing officer relied upon hearsay and reiterated that he sustained his injuries while playing basketball. The Assistant Superintendent upheld the adjudication and sanctions imposed. The present appeal ensued.

On appeal, Jeter contends he was denied a fair hearing, which violated his due process and equal protection rights guaranteed under both the United States and New Jersey Constitutions. He also contends the sanctions imposed were excessive and disproportionate to the offense for which he was found guilty. Finally, he contends his counsel substitute was ineffective.

We have considered Jeter's contentions in light of the record, arguments advanced in the briefs, and governing legal principles. We conclude the arguments advanced are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D)and (E). We add the following brief comments.

Jeter's claim that he was denied a fair hearing contrary to the New Jersey and United States Constitutions was not raised below. It is well-settled that reviewing courts "will decline to consider questions or issues not properly presented [below] . . . when [the] opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the [proceeding] or concern great matters of public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). There are no jurisdictional or public policy issues implicated in this appeal. His appeal to the Assistant Superintendent was limited to his challenge to the sufficiency of the evidence and, alternatively, his request for leniency. We therefore decline to consider this newly-found argument.

Turning to the evidence considered, it is undisputed that Jeter sustained injuries. While Jeter denies that he sustained the injuries from fighting, the record also discloses that he gave different explanations for his injuries. He told a supervisor that he received the injuries climbing down the ladder from his top bunk. The next day, he told medical staff he received the injuries while playing basketball. The hearing officer did not credit his explanations. Additionally, the individual with whom he fought also sustained injuries. The hearing officer, after considering all of the reports submitted from the medical staff and officers, concluded the injuries were consistent with the anonymous tip that Jeter had engaged in fighting.

N.J.A.C. 10A:4-5.1(a) outlines the permissible sanctions that may be imposed upon an adjudication of guilty on a disciplinary infraction. Those sanctions may include up to 15 days detention, up to one year of administrative segregation, and up to 365 days' loss of commutation credits. Ibid. The sanctions imposed upon Jeter arising out of his guilty adjudication were well within the permissible sanctions.

Finally, Jeter contends his counsel-substitute was incompetent, but fails to set forth any facts to support this contention. Although inmates are not entitled to the full spectrum of rights due a criminal defendant, appointment of assigned counsel for serious offenses, is among the limited due process protections afforded inmates. Avant v. Clifford, 67 N.J. 496, 537 (1975). A counsel substitute does not act as an attorney during a prison disciplinary hearing. Rather, a counsel-substitute facilitates the hearing under the direction of the hearing officer and advises the inmate with regard to his due process rights. An inmate who receives assistance from a counsel-substitute who is not "sufficiently competent" has been effectively denied the due process protections established by the applicable regulations. Id. at 529. In this case, however, beyond the allegation that the counsel-substitute was ineffective, Jeter presents no specific facts to support this contention. Thus, we reject his claim of ineffective assistance of counsel substitute.

Our scope of review of administrative decisions is quite limited. See In re Stallworth, 208 N.J. 182, 194(2011). We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579 80 (1980). We are not to substitute our judgment for that of the agency, Brady v. Dep't of Pers., 149 N.J. 244, 264 (1997), nor substitute our fact-finding for that of the agency. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide of the mark as to be manifestly mistaken." Ibid. Judged by these standards, there is substantial credible evidence in the record to support the agency decision and discern no basis for our intervention.