JOHN LEWIS v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5040-05T55040-05T5

JOHN LEWIS,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________________________________________

 

Submitted February 14, 2007 - Decided March 22, 2007

Before Judges Coburn and R. B. Coleman.

On appeal from a Final Agency Decision of the Department of Corrections.

John Lewis, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Inmate John Lewis appeals from a Final Agency Decision of the Department of Corrections (DOC) imposing disciplinary sanctions upon him for committing prohibited acts *.002, assaulting any person, and *.010, participating in an activity related to a Security Threat Group (STG), in violation of N.J.A.C. 10A:4-4.1(a).

On March 29, 2006, inmate Stanley Haywood was attacked at the South Woods State Prison in Bridgeton and beaten by numerous other inmates. Haywood claimed the attack was due to his affiliation with the STG Crips and that his attackers were affiliated with the rival STG Bloods. Lewis had previously been identified by Special Investigation Division (SID) investigators as a member of the Bloods; he and three other suspected Bloods were placed in Temporary Close Custody following the assault.

During the ensuing investigation, Senior Investigator Stephen Manera reviewed telephone calls made from that section of prison after the assault took place. In one of the telephone calls, an inmate is heard saying, "the Blood dudes stomped this dude half to death, I don't know if he's dead or not. The Bloods jumped one Crip." Manera later received information from a confidential informant, who identified Lewis as an inmate who punched and kicked Haywood, along with three others. The information supplied by the confidential informant was supported by interviews with four other inmates who also identified Lewis as an inmate who punched and kicked Haywood.

After a hearing where Lewis had the assistance of counsel substitute, the hearing officer found him guilty and imposed a sanction of fifteen days detention, three-hundred sixty-five days loss of commutation time, and three-hundred sixty-five days administrative segregation. Lewis filed an administrative appeal to the Assistant Superintendent of the prison, contending that the victim did not identify him as one of his attackers and questioning the credibility of witnesses relied upon to support the hearing officer's decision. The Assistant Superintendent upheld the determination of guilt and sanctions were imposed.

On appeal, Lewis contends that his due process rights were violated because: (1) the hearing officer improperly relied upon the S.I.D. report; (2) he did not have an opportunity to speak to his counsel substitute before the hearing; and (3) the statement of reasons was inadequate.

The first two contentions were not raised by Lewis at the disciplinary hearing. "It is a well-settled principle that our Appellate Courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available" unless the matter involves the trial court's jurisdiction or is of public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The arguments raised by Lewis were not raised below and do not involve jurisdiction or matters of public importance. Therefore, this court will not consider the issues that were not presented earlier. State v. Arthur, 184 N.J. 307, 327 (2005).

Even if Lewis' arguments are considered, the scope of judicial review of an administrative agency's factfinding is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). This court is only to determine whether the findings made by the agency could reasonably have been reached on sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 471 (1999).

First, we find no error in the determination of the DOC that the institution complied with the procedural safeguards governing inmate discipline. Avant v. Clifford, 67 N.J. 496 (1975); McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stephens, 139 N.J. 212 (1995). Furthermore, the evidence in the record supports a finding that Lewis was guilty of prohibited acts *.002, assaulting any person, and *.010, participating in an activity related to a STG, in violation of N.J.A.C. 10A:4-4.1(a). The hearing officer considered the preliminary incident report, the testimony of Sergeant Martinez, authorization for pre-hearing detention, SID report, the testimony of Senior Investigator Manera, Lewis' disciplinary record, and the medical reports for inmates Lewis and Haywood. Manera's report relied upon a confidential informant, whose story was supported by four other witnesses. The medical reports in the record showed numerous injuries to Haywood, and no injuries to Lewis. The absence of injuries on Lewis does not absolve him since Haywood was hit and kicked by his attackers.

Although the decision of the hearing officer does not expressly state her reasons for finding Lewis guilty, she summarizes all of the evidence she relied upon to reach her decision. It is implicit in the hearing officer's decision that she finds the evidence given by the confidential informant and four other witnesses to be credible. We are satisfied that there was substantial, credible evidence in the record to support the charges against Lewis and the Final Decision of the Department of Corrections is affirmed.

Affirmed.

 

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5

A-5040-05T5

March 22, 2007