COREY TUCKER 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NOT FOR PUBLICATION WITHOUT THE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

COREY TUCKER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________

September 22, 2015

Submitted September 16, 2015 Decided

Before Judges Alvarez and Haas.

On appeal from the New Jersey Department of Corrections.

Corey Tucker, appellant pro se.

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

PER CURIAM

Appellant, an inmate currently in the custody of the Department of Corrections (DOC), appeals from the DOC's June 3, 2014 decision adjudicating him guilty of institutional infraction *.101, escape. N.J.A.C. 10A:4-4.1(a). We affirm.

On May 22, 2014, appellant was residing at Clinton House, a residential community release program through which he was permitted to attend a cosmetology school in Ewing, New Jersey during the day. That morning, appellant signed out of Clinton House at 8:10 a.m. and, at 9:30 a.m., he called the facility to report that he had arrived at the school. At 12:30 p.m., appellant again called Clinton House to state he was at the school.

At approximately 1:30 p.m., however, an investigator who was visiting the school on another matter asked to speak to appellant. Appellant's supervisor told the investigator that appellant had not reported to the school that day.

The investigator went back to Clinton House and waited outside. At approximately 6:40 p.m., five minutes before appellant was due back at the facility, the investigator observed appellant exit a vehicle and enter the building. Because appellant left Clinton House and failed to report to the school as required, the investigator charged him with escape.

The next day, a disciplinary sergeant investigated the incident and referred the charge to a hearing officer. On May 27, and 30, 2014, the hearing officer conducted a hearing. Although appellant pled not guilty, he admitted that he was not at the school "the entire day" because he "was avoiding taking a test."

Based upon the reports prepared by the investigator and other staff members, the hearing officer found appellant guilty of the charge and sanctioned him by imposing 15 days' detention, 180 days' loss of commutation time, 180 days' of administrative segregation, and 30 days' loss of recreation privileges. Appellant filed an administrative appeal and, on June 3, 2014, the Associate Administrator upheld the hearing officer's findings and sanctions. This appeal followed.

On appeal, appellant argues there was insufficient evidence in the record to support the hearing officer's finding of guilt. We disagree.

The scope of our review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). However, when reviewing a determination of the DOC in a matter involving prisoner discipline, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the DOC followed the regulations adopted to afford inmates procedural due process. See McDonald v. Pinchak, 139 N.J. 188, 194-96 (1995).

Having considered the record in light of the foregoing principles, we conclude that sufficient credible evidence in the record supports the DOC's determination that appellant was guilty of escape. The investigator confirmed that appellant never reported to the school on May 22, 2014, and appellant admitted at the hearing that he was not at the school because he wanted to avoid taking a test that day. Thus, there is a substantial basis in the record for the hearing officer's findings.

Appellant's argument that he should not have been charged with escape because the cosmetology school is not a "place of detention" lacks merit. N.J.A.C. 10A:20-4.37(a)(2) clearly states that "[a]n inmate residing at a residential community program[,]" such as Clinton House, "shall be deemed an escapee" if he or she "fails to arrive at the temporary leave site . . . ." Thus, the hearing officer properly found appellant guilty of escape because he did not report to the school, which was his "temporary leave site," on May 22, 2014.

Affirmed.