OTIS F. BLUNT 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NOT FOR PUBLICATION WITHOUT THE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-0997-10T3

OTIS F. BLUNT,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

December 29, 2011

Submitted December 7, 2011 - Decided

Before Judges Harris and Koblitz.

On appeal from the New Jersey Department of Corrections.

Otis F. Blunt, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Otis F. Blunt appeals from a final disciplinary disposition of the Department of Corrections (the Department) that found him guilty of committing prohibited act *.102, attempting or planning an escape, in violation of N.J.A.C. 10A:4-4.1(a)(*.102). We affirm.

On July 22, 2010, Blunt was an inmate housed at the East Jersey State Prison in Rahway.1 On that date, he and another inmate were observed by a senior corrections officer engaged in a conversation. Blunt was seen sketching a diagram in the sand with a stick and at the same time pointing out to the other inmate the location and geometry of nearby buildings and a wall. His suspicions aroused, the corrections officer stepped to within fifteen feet of the inmates and heard Blunt explain how to break off a piece of metal from his cell, fashion it into a tool, and then use it to cut mortar to free parts of bricks from the cell wall.

After the incident was reported to superior officers, Blunt was served with disciplinary charges, accusing him of prohibited act *.102. He was immediately transferred to the New Jersey State Prison in Trenton for adjudication. The first hearing date was scheduled for July 26, 2010, but that date, along with several others, was postponed into September 2010 to facilitate requests for counsel substitute,2 a polygraph

examination,3 copies of photographs and a video recording of the prison yard,4 and confrontation questions. Blunt pled not guilty to the charges.

At the hearing, Blunt was granted a generous opportunity to pose numerous questions. The hearing officer found that Blunt's accuser "completed the confrontation [without] any hesitation." The other inmate offered a statement indicating that his discussion with Blunt merely involved a sketch for an arm tattoo.

Blunt presented a statement containing seven separately-numbered "Reasons Why It Makes No Sense." Among other things, he argued that the corrections officer misunderstood the context of his conversation. Alternatively, Blunt hinted that the corrections officer was dishonest when he indicated that he actually overheard the contents of the inmates' conversation. Blunt contended that the yard was "crowded with inmates talking, yelling, arguing, or whatever" and "[t]his would mean that [Blunt] had to be 'yelling' these plans." Blunt further suggested that he would never have committed the prohibited act, especially since he was so close to his release eligibility date. He urged that he would not have jeopardized his expected release into the community by such conduct.

The hearing officer considered all of the available evidence and concluded as follows:

Based on reports and confrontation (which offered the inmates extensive leniency in questioning length) this charge is upheld. The [corrections officer] had no reservations about what he heard [and] the inmates did not ask the [corrections officer] if he was unable to hear what went on. The [corrections officer] state the inmates positioned themselves in a manner which allowed him to clearly identify what was going on. Based on all issues and requests being addressed this charge is upheld.

Sanctions of ten days detention, 365 days of administrative segregation, 365 days loss of commutation time, and thirty-five days loss of recreational privileges were imposed.

Blunt filed an administrative appeal with prison officials, which argued that the adjudication was against the weight of the evidence. He also claimed that the charges should be dismissed due to (1) the failure to preserve "video footage," which "would have clearly shown the incident from start to finish. It would have shown that [the] inmates . . . [were] only discussing a skull drawing and that the charging officer could not have heard their conversation;" (2) the transfer to New Jersey State Prison, which "hampered [the] ability to effectively present a full defense; and (3) "the length of the delay (over forty days) in adjudicating these charges[, which] is a violation of due process under [N.J.A.C.] 10A:4-9.7, 10A:4-9.8." The Assistant Administrator of East Jersey State Prison upheld the hearing officer's determinations, explaining:

Based upon a review of the documents submitted in this matter, this writer finds no violation of standards nor a misinterpretation of the facts as such sustain the original sanction.

This appeal followed.

Blunt raises several discrete issues on appeal, many of which were not presented during the administrative proceedings. For example, he now complains that (1) he was prejudiced by his counsel substitute's "lack of familiarity with the case" thereby "forc[ing] counsel substitute to put on an impromptu defense"; (2) he was adjudicated "based solely on the officer's report"; and (3) he was denied an adjournment by the hearing officer ("a postponement was very much in the interest of a fair hearing"). The balance of Blunt's arguments includes his continued refrain that he was deprived of due process because of the lack of a videograph and the denial of his request for a polygraph examination. We have reviewed all of Blunt's appellate arguments, and are satisfied that they are unpersuasive.

Our scope of review is limited, and Blunt's contentions must be analyzed in accordance with that standard. In re Anthony Stallworth, 208 N.J. 182, 194 (2011); Moore v. Dep't of Corr., 335 N.J. Super. 103, 110 (App. Div. 2000). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" In re Anthony Stallworth, supra, 208 N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

After an assessment of the record, we conclude that Blunt received all of the substantive and procedural due process to which he was entitled under the principles of McDonald v. Pinchak, 139 N.J. 188 (1995) and Avant v. Clifford, 67 N.J. 496 (1975). The numerous adjournments of the hearing were to facilitate the collection of a full record, and had no capacity to prejudice Blunt. Not only did the hearing officer rely upon that full record, but she did not limit her review to the accuser's statement. The record is bereft of evidence to suggest that Blunt's defense was in any way hampered by the performance of counsel substitute, the lack of a videograph or polygraph examination, or the need for a further adjournment.

The failure to raise the many freshly minted issues in the administrative appeal process precludes the advancement of those arguments on appeal. As these issues were not originally presented in the disciplinary proceeding, they are not properly before us. See State v. Robinson, 200 N.J. 1, 20 (2009); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Ultimately, we conclude that the final administrative decision was not arbitrary, capricious, or unreasonable given the facts presented, and the decision is supported by substantial credible evidence in the record as a whole. The sanctions that were imposed for prohibited act *.102 are unexceptionable, particularly in light of the reason Blunt was incarcerated in the first instance: a conviction for escape. See N.J.A.C. 10A:4-4.1(a) ("Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions.").

Affirmed.

1 Blunt was serving a five-year sentence for third-degree escape, N.J.S.A. 2C:29-5(a), which he committed in 2007. He pled guilty to escaping from the Union County Jail, which he claimed he committed in order to collect evidence that ultimately exonerated him, in a later jury trial, of first-degree robbery.

2 Two counsel substitutes were provided to assist Blunt's defense.

3 The polygraph examination was denied on July 30, 2010, by the Administrator of East Jersey State Prison because "there [was] no new evidence being presented that would necessitate a credibility review."

4 Several illegible photographs were provided to us in the appellate record, which supposedly corroborate the corrections officer's version of events. No video recording was available of the prison yard where Blunt, the other inmate, and the corrections officer were located on the date in question.