RICARDO FREENY 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NOT FOR PUBLICATION WITHOUT THE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

RICARDO FREENY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________

February 24, 2015

 

Submitted February 4, 2015 Decided

Before Judges Alvarez and Waugh.

On appeal from the New Jersey Department of Corrections.

Richardo Freeny, appellant pro se.

John J. Hoffman, Acting Attorney General,attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Ricardo Freeny appeals the final administrative action of the Department of Corrections (DOC) finding him guilty of prohibited act .254, refusing to work, or to accept a program or housing unit assignment, in violation of N.J.A.C. 10A:4-4.1(a). We reverse.

We discern the following facts and procedural history from the record on appeal. Freeny is serving a thirty-year sentence, with a fifteen-year period of parole ineligibility. He is an inmate at Bayside State Prison, and was at the time of the events underlying this appeal.

Based on events that occurred on March 21, 2013, Freeny was charged with disciplinary offense *.005, threatening another with bodily harm or with any offense against his or her person or property. According to Lieutenant M. Blair, Freeny entered the supervisor's office in the medium security compound at Bayside and said: "I'm not locking here anymore, and I will do whatever it takes to get out, including fucking you up." Because Blair feared for his safety, he summoned the compound patrol and Freeny was placed in pre-hearing detention.

During an examination prior to Freeny's placement in detention, the nurse found a superficial laceration and bruising to Freeny's right eye. According to the preliminary incident report, Freeny told the nurse and Blair that he fell out of his bunk while sleeping and cut himself.

The disciplinary charge was served on March 21. The disciplinary hearing started on March 25. Freeny entered no plea, but requested the assistance of counsel substitute. The hearing was adjourned pending receipt of further documentation concerning the incident.

The hearing resumed on March 27, at which time Freeny appeared with his counsel substitute. He admitted that he did not want to be incarcerated at Bayside, but denied making any threatening statement to Blair. He further asserted that, on March 20, he had been beaten by the security staff. Freeny did not call any witnesses and declined the opportunity for confrontation of adverse witnesses.

Based on the documentary record and Freeny's testimony, the hearing officer modified the charge from *.005, threatening another, to .254, refusing to work, or to accept a program or housing unit assignment. She then found Freeny guilty of that offense, based on his admission that he had said he did not want to be incarcerated at Bayside. The hearing officer imposed the following sanctions: ten days of detention, with credit for time served; ninety days of administrative segregation; and sixty days loss of commutation time.

Freeny filed an administrative appeal, which was denied on March 28. This appeal followed. On appeal, Freeny argues that DOC's decision was arbitrary, capricious, and unreasonable, and was not supported by substantial credible evidence in the record.1

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 there was a lack of fair support in the evidence; or that the decision 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). Substantial evidence is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).

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. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Applying those legal principles in light of the record before us, we are constrained to reverse despite the deference ordinarily owed to administrative agency decisions. It was implicit in the hearing officer's decision to amend the charges that there was insufficient credible evidence to find Freeny guilty of the *.005 violation. Although the record does support the hearing officer's finding that Freeny "shared that he does not want to lock in [Bayside]," there is no evidence in the record to support a finding that he somehow refused to do so. Offense .254 clearly requires a refusal. To find a violation of offense .254 on the basis of an inmate's statement that he does not want to be at a particular prison is patently arbitrary, capricious, and unreasonable.

Reversed.

1 We reject DOC's argument that we should not consider Freeny's appellate arguments because they were not raised below. First, the charge of which Freeny was found guilty was not the basis of the hearing, but was added when the hearing officer declined to find him guilty of the offense with which he was charged. Second, assuming Rule 2:10-2 is applicable at all, we exercise our authority under that rule, "in the interests of justice, [to] notice plain error not brought to the attention of the [administrative agency]."