KEVIN SCOTT v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1285-06T31285-06T3

KEVIN SCOTT,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________

 

Submitted March 20, 2007 - Decided April 18, 2007

Before Judges Lisa and Grall.

On appeal from Department of Corrections.

Kevin Scott, appellant, pro se.

Stuart Rabner, Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Sean M. Gorman, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Kevin Scott, an inmate formerly incarcerated at the Adult Diagnostic and Treatment Center (ADTC) and currently incarcerated at East Jersey State Prison in Rahway, appeals from an adjudication of disciplinary infractions for prohibited acts *.050, sexual assault, *.002, assault, and .305, providing false information to a staff member, all in violation of N.J.A.C. 10A:4-4.1(a). For prohibited acts *.050 and *.002, he received consecutive disciplinary sanctions of 15 days' detention, 365 days' administrative segregation and 365 days' loss of commutation time. For prohibited act .305, he received a sanction of 15 days' detention. Scott sought administrative review. In final orders dated September 20 and 28, 2006, the Administrator upheld the findings and imposed the sanctions. The final orders from which Scott appeals do not provide for his transfer from ADTC to another institution, and the question of the propriety of that transfer is not before us on this appeal from the disciplinary decisions.

On July 30, 2006, an inmate who was friendly with Scott was taken to the medical clinic after he complained that he was assaulted. An investigation followed.

On September 12, 2006, Scott initialed every page of a seven-page statement in which he gave a detailed description of two incidents during which he performed fellatio on the other inmate despite his protestations. He also admitted that he punched the same inmate in the face and lied when first asked about punching him, and lied to his team about having a sexual relationship with him.

The statement, which was in the form of questions asked and answers given, included an acknowledgement that Scott voluntarily participated in the "written question and answer statement." When asked whether there was any information that Scott felt was important that had not been discussed Scott replied, "No. But I would like to say that now that the truth is out I feel a lot better after holding my guilt for so long." Charges were filed on September 13.

Scott was provided with substitute counsel and did not ask to confront any witness. He provided the hearing officer with letters written by the inmate he allegedly assaulted that were indicative of a consensual relationship. The other inmate, however, filed statements in which he reported that he wrote the letters "because [Scott] told [him] to" and confirmed that Scott "forced [him] into letting [Scott] give [him] oral sex . . . against [his] will and without [his] consent."

Scott raises the following issues on appeal:

I. APPELLANT HAS CONSTITUTIONALLY

PROTECTED LIBERTY INTERESTS UNDER THE PROCEDURAL DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO BE ABLE TO PRESENT ENVIDENCE AT HIS HEARING, APPEAL THE DECISION AND HAVE IT HEARD FAIRLY, NOT JUST OVERLOOKED AND RUBBER STAMPED WITHOUT PROPER REVIEW.

II. APPELLANT HAS BEEN DENIED HIS RIGHT OF

SELF INCRIMINATION UNDER THE 5TH

AMENDMENT BY BEING PLACED IN ADMINISTRATIVE LOCK-UP (I.E. THE RESTRICTIVE ACTIVITIES PROGRAM OR RAP) FOR OVER TWENTY (20) DAYS AND REPEATEDLY QUESTIONED BY ADTC'S PSYCHOLOGICAL STAFF, SID INVESTIGATION, AND THE CLASSIFICATION BOARD WITHOUT ONCE BEING INFORMED OF HIS MIRANDA RIGHTS OR HIS IMMUNITY RIGHTS UNDER N.J.A.C. 10A:4. THIS ALSO VIOLATED THE BOTH DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE LAW.

III. APPELLANT HAS A CONSTITUTIONALLY

PROTECTED LIBERTY INTEREST UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO REASONABLY SAFE CONDITIONS OF CONFINEMENT.

IV. THE UNIQUE LEGISLATIVE PURPOSE AND GOAL

OF THE ADTC.

The issues raised in Points III and IV of Scott's brief were not raised below. For that reason, we decline to consider the arguments. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

The issues raised in Points I and II lack sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(1)(E). This court may not substitute its "judgment for that of the agency where [the] findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005); see Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (discussing review of decisions of an administrative agency).

We have no difficulty in concluding that there is substantial credible evidence to support the findings and that Scott was afforded all process due. See McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Avant v. Clifford, 67 N.J. 496, 525-46 (1975); N.J.A.C. 10A:4-9.15(a). Prior to the filing of any disciplinary charges, appellant voluntarily participated in an interview after being advised that the statement would be used for administrative purposes in the prison. See Avant, supra, 67 N.J. at 538-43 (discussing warnings required in a prison setting and prohibiting the use of silence or statements made in connection with disciplinary proceedings in criminal trials). In writing, he acknowledged the advice and that his participation was voluntary. He then described and admitted to his actions that clearly amounted to sexual assault, assault and lying to an officer. The charges subsequently filed gave adequate notice of the conduct alleged. Despite Scott's admission of guilt, he was permitted to present evidence in his defense. He introduced letters that suggested that his sexual relationship with the other inmate was consensual. Faced with that inmate's written statements denying consent and indicating that he wrote the letters at Scott's direction, Scott, who was given the opportunity to request witnesses, did not ask to cross-examine that inmate.

 
Affirmed.

(continued)

(continued)

5

A-1285-06T3

April 18, 2007