ROSS W. BROWN 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NOT FOR PUBLICATION WITHOUT THE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-0

ROSS W. BROWN,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

____________________________________

December 22, 2014

Submitted August 27, 2014 Decided

Before Judges Simonelli and O'Connor.

On appeal from the New Jersey Department of Corrections.

Ross W. Brown, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Ross Brown, an inmate at Bayside State Prison, appeals from a final decision of respondent Department of Corrections (DOC) affirming the decision of a hearing officer to impose disciplinary sanctions for committing prohibited act *.002, assaulting any person, N.J.A.C. 10A:4-4.1(a). We affirm.

We derive the following facts from the record. At 2:15 p.m. on October 15, 2012, Corrections Officer Baldissero saw that Brown "had his [television] volume turned up" and asked Brown to "plug in his headphones." When Brown refused, Baldissero directed him to unplug the television and bring it to the Sergeant's office. Baldissero then attempted to retrieve the television, but Brown "stepped in front of [him] blocking [him] from the [television]." After Brown refused to move away from the television, Baldissero directed him to go to the conference room to speak to the Sergeant. While escorting Brown to the conference room, Brown "stopped and turned facing [Baldissero] in an aggressive manner." While Baldissero was calling for assistance, Brown pushed him in the chest. Baldissero then grabbed Brown and pushed him against the wall, but Brown resisted. Three other corrections officers responded to Baldissero's call and restrained Brown. According to the report, Baldissero attempted to contain Brown but Brown continued to resist. With the assistance of three other officers, Brown was finally restrained. The following day, Brown was served with a disciplinary charge for prohibited act *.002. Brown pled not guilty.

After several adjournments, Brown appeared at the hearing on November 7, 2012, and pled not guilty, requested, and was granted, substitute counsel and the opportunity to call witnesses and confront/cross-examine adverse witnesses, and requested and was denied a polygraph. Brown later rescinded his request to confront/cross-examine adverse witnesses.

After reviewing the evidence, on November 13, 2012, the hearing officer found Baldiserro's written report of the incident was credible and that the report and other evidence supported the charge against Brown. The hearing officer found Brown guilty of the charge and sanctioned him to ten days of detention, 240 days of administrative segregation, and a loss of 240 days of commutation time.

On February 14, 2013, Brown appealed the hearing officer's decision. He argued, in part, that he was not present at the hearing and was arbitrarily denied a polygraph. On February 27, 2013, the Administrator upheld the decision and sanctions, concluding there was compliance with the applicable procedural standards, that Brown received a fair and impartial hearing, did not offer witnesses or request confrontation with adverse witnesses, and his appeal was untimely. This appeal followed.

On appeal, Brown again contends he was not present at the hearing and was arbitrarily denied a polygraph. Brown also contends for the first time that the record lacked substantial, credible evidence supporting the hearing officer's finding of guilt.1

Prison authorities have broad discretion in the area of administering a prison and handling disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999). An inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). "Prisoners' rights 'are abridged to the extent necessary to accommodate the institutional needs and objectives of prisons.'" Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 253 (App. Div. 2010) (citing McDonald v. Pinchak, 139 N.J. 188, 194 (1995)). Nonetheless, prisoners are entitled to certain limited due process protections. Avant, supra, 67 N.J. at 522. These protections are: (1) the right to written notice of the charges at least twenty-four hours prior to the hearing, (2) the right to an impartial tribunal, (3) a limited right to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses, (5) the right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) in appropriate circumstances, the assistance of a counsel substitute. Id.at 525-33.

We reverse an agency's decision only where it is arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). "[A] disciplinary hearing officer's adjudication that an inmate committed a prohibited act must be based on substantial evidence in the record." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010). As noted in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." The phrase has also been described as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (2002). "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

We have considered Brown's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.

Brown was not entitled to a polygraph. The evidence against him was unrefuted and he presented no evidence challenging the credibility of that evidence. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005). There is sufficient credible evidence in the record showing that Brown was present at the hearing and supporting the adjudication of guilt. The DOC's decision to deny a polygraph and affirm the hearing officer's decision were, therefore, not arbitrary, capricious, or unreasonable.

Affirmed.

1 We decline to address Brown's contentions that he received the ineffective assistance of substitute counsel and the hearing was conducted before multiple hearing officers. Brown did not raise these issues before the Administrator, and they do not involve the agency's jurisdiction or a matter of public importance. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997); State v. Robinson, 200 N.J. 1, 20 (2009).