ABDULLAH BRANCH 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NOT FOR PUBLICATION WITHOUT THE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

ABDULLAH BRANCH,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________

December 17, 2015

Submitted December 7, 2015 Decided

Before Judges Sabatino and Accurso.

On appeal from the New Jersey Department of Corrections.

Abdullah Branch, 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

This is a prison disciplinary appeal. Abdullah Branch appeals from the July 17, 2014 final decision of the Department of Corrections, finding him guilty of disciplinary infraction charge .013, unauthorized physical contact with any person, such as, but not limited to, physical contact not initiated by a staff member, volunteer or visitor, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, both in violation of N.J.A.C. 10A:4-4.1(a). His sanction was fifteen days' detention, ninety days' administrative segregation, and sixty days' loss of commutation time. We affirm.

Branch was incarcerated at Southern State Prison at the time of these events. According to the Department's proofs, on July 14, 2014 at 5:15 p.m. Senior Corrections Officer (SCO) Vohland ordered Branch to stop loitering in a hallway. Branch, who maintained he was performing his assigned job of respectfully assisting the orderly dispersal of group meetings of the Therapeutic Community and ensuring the hallway was clear, refused. When SCO Vohland asked for Branch's identification, Branch slapped his hand away, made a fist and assumed an aggressive stance in front of thirty to forty other inmates. The SCO called a Code 33 and other officers assisted in subduing Branch. While the facility was secured, movements were delayed for approximately twenty minutes.

Branch was charged with disciplinary infractions *.306 and *.002 assaulting any person. He was given timely written notice of the charges and afforded the assistance of counsel substitute. Branch pled not guilty to *.306 and to a modified charge of .013 in lieu of the *.002 assault charge, waiving his right to twenty-four hours' notice of the modified charge.

The disciplinary hearing was held on July 16, 2014. Branch told the hearing officer he never touched the corrections officer, gave over his identification when asked and was not disrespectful to anyone. He claimed to have been simply doing his job. He relied on several inmate statements collected on his behalf, not all of which were consistent with his version of events. Counsel substitute requested leniency.

After considering the evidence, including the statement of a counselor who overheard SCO Vohland give the order to clear the hallway and ask for Branch's identification and heard Branch respond with "feedback . . . disrespecting the directive," the hearing officer found Branch guilty of both charges and imposed sanctions. Branch filed an administrative appeal to the prison's associate administrator who upheld the finding and the sanctions.

On this appeal, Branch contends he "was put between a rock and a hard place . . . because while he was performing the duties of his assigned job, the unit officer took offense of how [Branch] was conducting his job." He also contends he was not informed of his right to confront the officers, the hearing officer was biased and did not provide a written statement of the evidence, and that his counsel substitute was ineffective because he failed to object to the sergeant's writing of the charge and to request confrontation and oral witness testimony, none of which he raised at the hearing or in his administrative appeal.

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. Nat. 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).

Based upon our review of the record, we are satisfied that the reports and statements upon which the hearing officer and the associate administrator relied provided the necessary substantial evidence to support their findings on the charges, and that Branch was provided with all of the substantive and procedural due process to which he was entitled. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). The record reflects that Branch declined the opportunity to cross-examine the witnesses, and that the hearing officer specified the evidence on which she relied to support her decision. Branch was also offered and declined the opportunity to express in the adjudication report any dissatisfaction with the conduct of the disciplinary hearing.

We decline to address the new issues Branch now raises regarding the charge, the performance of counsel substitute and the alleged bias of the hearing officer. Nothing in the record supports his claims, and the failure to raise these issues before the hearing officer or in the administrative appeal precludes advancement of the issues on appeal as they are not properly before us. See State v. Robinson, 200 N.J. 1, 19-20 (2009).

Affirmed.