BORIS BORETSKY 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NOT FOR PUBLICATION WITHOUT THE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-6093-10T1

BORIS BORETSKY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

 

____________________________

March 18, 2013

 

Submitted November 8, 2012 - Decided

 

Before Judges Simonelli and Accurso.

 

On appeal from the New Jersey Department of Corrections.

 

Boris Boretsky, appellant pro se.

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).

 

PER CURIAM

This is a prison disciplinary appeal. Boris Boretsky appeals from the July 13, 2011 final decision of the Department of Corrections (Department), finding him guilty of disciplinary infraction charge *.004, fighting with another person, in violation of N.J.A.C. 10A:4-4.1(a). His sanction was fifteen days of detention with credit for time served, 180 days of administrative segregation with credit for time served, and 180 days of loss of commutation time which was suspended for sixty days. We affirm.

Boretsky is incarcerated at New Jersey State Prison. According to the Department's proofs, on February 18, 2010, an altercation involving twelve inmates occurred on Unit 2A in the North Compound of the prison. Upon being released from their cells for quiet recreation in the evening, a group of inmates ran toward the backdoor of the unit and began brawling.

Senior Corrections Officers (SCO) Pierce and Meyers saw Boretsky run toward the melee. SCO Pierce, who was watching from the control booth where he called the code, saw Boretsky run toward the brawl after the fight had started. From his vantage, all he could see was swinging and punching with Boretsky "in the middle of it." SCO Meyers was on the floor with a better view of the action. He testified that Boretsky was the last inmate to run toward the fight. Meyers stated that as Boretsky got there, "[i]t appeared he placed his hand on someone and that person turned around and clocked him." Both officers agreed that Boretsky fell to the floor and did not get up. Boretsky received injuries to his head and spent the night in the infirmary. Although SCO Meyers could not tell whether Boretsky was punching or being punched, he surmised that Boretsky was defending himself. A search of the area afterwards uncovered five weapons, some stained with blood, the brawlers had left behind.

Boretsky was charged with disciplinary infractions *.004 and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. Boretsky was given timely written notice of the charges and afforded the assistance of counsel substitute. He did not enter a plea, made no statement, and offered no witnesses. After considering the evidence, the hearing officer found Boretsky guilty of both charges and imposed sanctions. Boretsky filed an administrative appeal to the prison administrator who upheld the finding and the sanctions.

Boretsky filed a timely appeal to this court. Several months later, we granted the Department's motion to remand for a new hearing, retaining jurisdiction. On remand, Boretsky declined the assistance of counsel substitute and entered a not guilty plea to both charges. He identified two inmates from whom he wished statements, and sought confrontation of SCOs Meyers and Pierce. The hearing officer granted both requests.

The disciplinary hearing on remand began on June 8, 2011, and continued over two additional dates to allow confrontation and time for Boretsky to submit a written statement. Confrontation resulted in the testimony of SCOs Meyers and Pierce recounted above. In his statement submitted June 11, 2011, Boretsky claimed that he was in the law library when he heard a commotion and "went to see what was going on." Boretsky asserted that as he approached, he was punched in the back of the head by another inmate. He claimed he was attacked in retaliation for his refusal to withdraw a complaint filed in Superior Court against a corrections officer not involved in this incident. He stated that the two inmates from whom he sought statements would testify that he was the victim of an "unprovoked physical assault."

Witness statements from the two inmates were obtained by the Department and reviewed by the hearing officer. One witness stated that he was in the shower when the incident occurred and saw nothing. The other stated that he was turning in mail at the control booth window when the code was called. He turned and saw a group of men fighting and Boretsky "walk to that area." He saw Boretsky walk back toward the booth "within seconds" covered in blood. The inmate concluded that "[i]t would appear Boretsky was nosey and ended up the victim of an unprovoked assault."

After the Department obtained the statements from the two witnesses he had requested, Boretsky sought statements from additional witnesses. The hearing officer declined the request, noting that Boretsky "cannot keep requesting witnesses until he gets a favorable response on his behalf." The hearing officer also denied Boretsky's request to take a polygraph exam. After considering all of the evidence, the hearing officer found Boretsky guilty of fighting but not of conduct disrupting the security or running of the institution. Relying on Boretsky's own statement that he "went to see what was going on," the officers' testimony that Boretsky was involved in the melee, and the witness's statement that Boretsky was injured because he "was nosey," the hearing officer concluded that Boretsky, although not initially a participant, chose to involve himself in the group fight and was injured as a result. Accordingly, she found that the Department could not sustain the *.306 charge because Boretsky did not cause the code to be called, but proved Boretsky guilty of the *.004 charge because he willingly involved himself in the brawl.

The hearing officer sanctioned Boretsky to fifteen days of detention with credit for time served, 180 days of administrative segregation with credit for time served, and 180 days of loss of commutation time which was suspended for sixty days. Boretsky filed an administrative appeal. On July 13, 2011, the assistant superintendent of the prison upheld the hearing officer's determination.

On this appeal, Boretsky claims that his due process rights were violated because he was denied the opportunity to call witnesses at the remand hearing and was never given the witness statements that he requested and the hearing officer considered as part of the evidence. He argues that the statements of the officers were inconsistent and false and that production of the logbook located in the control booth in which the officers log mail from inmates will demonstrate their falsity. Finally, Boretsky argues that the dismissal of the *.306 charge mandates dismissal of the *.004 charge as they are not independent of one another.

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). Agency decisions 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 will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it 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). If there is substantial credible evidence in the record to support more than one conclusion, the agency's choice will control. In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990); De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985). In such circumstance, we may not substitute our judgment for the agency's, even if we would have decided the case differently had we heard the evidence. Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 443 (App. Div. 2001).

The hearing officer in this matter determined that Boretsky willingly involved himself in a very serious altercation involving eleven other inmates and five weapons. Although Boretsky contends that he did not participate in the fighting but was the victim of an unprovoked attack in the vicinity of the melee, there is certainly substantial credible evidence in the record to support the hearing officer's finding. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Electric & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). Here, in addition to the officers' testimony that Boretsky ran towards the brawl and got in the middle of it, being the last inmate to join the fighting, the record includes Boretsky's own statement that he went to see what was going on as well as the corroborating statement of another inmate that puts Boretsky close enough to have been caught up in the melee.

Further, Boretsky was afforded the opportunity to obtain the statements of witnesses on his behalf and availed himself of it. The hearing officer acted well within her discretion in denying Boretsky's subsequent request for additional witnesses in the hope of finding more favorable testimony. Boretsky was afforded the right to obtain witnesses in his behalf and to confront and cross-examine the officers who filed the charges. No other process was due. See Jones v. Dep't of Corr., 359 N.J. Super. 70, 75 (App. Div. 2003) (reiterating that inmates in prison disciplinary hearings are entitled to due process rights of confrontation and litigation right to witness access).

Finally, we reject Boretsky's argument that dismissal of the *.306 charge compelled dismissal of the *.004 charge. All of the evidence produced at the hearing supported the hearing officer's determination that the brawl was already in progress when Boretsky got involved and, thus, that Boretsky's conduct did not cause SCO Pierce to call the code. That conclusion, however, in no way undermines the finding, supported by substantial evidence in the record, that Boretsky participated in a brawl already underway. One need not instigate a fight to engage in one.

Based upon our review of the record, we are satisfied that the testimony and statements upon which the hearing officer and the assistant superintendent relied provided the necessary substantial evidence to support their findings on the *.004 charge and that Boretsky was provided with all of the substantive and procedural due process to which he was entitled. McDonald v. Pinchak, 139 N.J. 188, 193-95 (1995).

W

e decline to address the new issue that Boretsky now raises regarding the production of the logbook. Although Boretsky referred to the logbook in the proceedings before the hearing officer, he never requested its production. The failure to raise this issue before the hearing officer or in the administrative appeal precludes advancement of the issue here as it is not properly before us. See State v. Robinson, 200 N.J. 1, 20 (2009).

Affirmed.