CAISY FRANK 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NOT FOR PUBLICATION WITHOUT THE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-4771-08T1

CAISY FRANK,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________________________

November 3, 2010

Submitted July 13, 2010 - Decided

Before Judges R. B. Coleman and C. L. Miniman.

On appeal from the New Jersey Department of Corrections.

Caisy Frank, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

Caisy Frank, an inmate at Northern State Prison, appeals from a May 1, 2009 Final Agency Decision of the New Jersey Department of Corrections (DOC) finding him guilty of prohibited act .304, using abusive or obscene language to a staff member, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On April 24, 2009, Frank resided at Talbot Hall in Newark, New Jersey, an approved halfway house. In the morning, Frank was denied access to the commissary by the property clerk. Frank spoke in a loud tone and became disrespectful. He then began to leave the area before turning back and telling the clerk, he "should smack the s--- out of [him]." The property clerk immediately reported the incident. The following day Frank received notice of a charge against him for prohibited act *.005, threatening another with bodily harm or with any offense against his or her person or his or her property. N.J.A.C. 10A:4-4.1(a).

As a result, Frank was placed in pre-hearing detention and, then, transferred to Northern State Prison for four days. On April 28, 2009, he was transferred to the Central Reception and Assignment Facility. Due to this transfer, Frank's April 29, 2009, hearing was postponed. He received a disciplinary hearing on May 1, 2009. At the hearing, the prohibited act was modified from *.005 to a less severe charge, .304, using abusive or obscene language to a staff member.1

At the hearing, Frank did not enter a plea to the charge against him. He requested and was granted the assistance of counsel substitute. Both Frank and counsel substitute declined the opportunity to make a statement and the opportunity to confront/cross-examine adverse witnesses, although the investigation report indicated Frank stated he was speaking to another inmate, not to a staff member. Frank was found guilty of the disciplinary infraction as amended and sanctioned with sixty days loss of commutation time. Frank administratively appealed the decision within the DOC, requesting leniency, but the decision of the hearing officer was upheld.

On appeal to this court, Frank contends:

POINT I: DURING DISCIPLINARY PROCEEDINGS, THERE WAS NOT SUBSTANTIAL EVIDENCE OF GUILT AND THE APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED.

On review, we must uphold a final agency decision unless it is arbitrary, capricious, unreasonable or unsupported by credible evidence. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The relevant standard of review is "whether the findings could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole[.]" In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotations omitted)). N.J.A.C. 10A:4-9.15(a) provides that "a finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."

We have fully considered Frank's substantive and procedural arguments and are satisfied that they lack sufficient merit to warrant a reversal in light of our limited scope of review.

To the extent Frank's appeal argues the DOC lacked sufficient evidence to find him guilty, we are satisfied there was substantial credible evidence to support the hearing officer's findings and the final decision of the DOC. The staff member immediately reported the incident and although Frank states in a letter that he was accused at random, the hearing officer accepted the staff member's version of the incident. The decision of the hearing officer was upheld by the DOC.

Frank also argues he did not sign the form which waived his right of twenty-four hours to prepare a defense to the modified charge. Pursuant to N.J.A.C. 10A:4-9.16(a), the inmate may be given a postponement when the charges are modified. That regulation states:

(a) Whenever it becomes apparent at a disciplinary hearing that an incorrect prohibited act is cited in the disciplinary report but that the inmate may have committed another prohibited act, the Adjustment Committee or Disciplinary Hearing Officer shall modify the charge. The inmate shall be given the option of a 24-hour postponement to prepare his or her defense against the new charge or have the new charge adjudicated at that time.

Frank asserts that counsel substitute who was assigned to represent him decided to waive this right. He does not assert the counsel substitute did so fraudulently, merely that the adjudication forms "do not show if this was a voluntary waiver on the appellant's part." He does not assert that he suffered prejudice, and we have noted that the failure to adhere to any of the time limits prescribed by the disciplinary procedures shall not mandate the dismissal of a disciplinary charge. Negron v. Dep't of Corrections, 220 N.J. Super. 425, 429 (App. Div. 1987). There being no evidence of a disavowal of the waiver by the counsel substitute at the hearing, appellant is barred from raising it on appeal. Similarly, Frank claims he was not allowed to confront the property clerk, although the disciplinary adjudication form indicates he declined this opportunity.

Our Supreme Court has recognized that prisoners are entitled to certain limited protections prior to being subjected to disciplinary sanctions, including the limited right to call witnesses, to present documentary evidence in defense to the charges and the limited right to confront and cross-examine witnesses. Avant v. Clifford, 67 N.J. 496, 522 (1975); McDonald v. Pinchak, 139 N.J. 188, 192 (1995); Jacobs v. Stephens, 139 N.J. 212, 215 (1995). We are satisfied in this case that all of these rights were respected.

Furthermore, we note that in his administrative appeal, Frank only pled for leniency and suspension of the sanctions pending appeal. Pursuant to Rule 2:10-2, we are not obligated to consider errors not previously asserted. State v. Robinson, 200 N.J. 1, 20 (2009).

Frank also asserts he is not guilty of prohibited act .304, because the property clerk is not a staff member of the DOC, but rather an employer of Talbot Hall. We reject that distinction. Talbot Hall was at the time an approved halfway house. Inmates who violate residential community program rules or regulations are subject to the same restriction of privileges by residential community program staff as would apply to other inmates. N.J.A.C. 10A:20-4.19(b). Therefore, the modified charge was an appropriate subject for adjudication.

Affirmed.

1 N.J.A.C. 10A:4-4.1(a) states that "[p]rohibited acts preceded by an asterisk (*) are considered the more serious and result in the most severe sanctions."