WILLIAM SUAREZ 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NOT FOR PUBLICATION WITHOUT THE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

WILLIAM SUAREZ,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________________________

August 15, 2016

Submitted October 7, 2015 Decided

Before Judges Kennedy and Gilson.

On appeal from New Jersey Department of Corrections.

William Suarez, 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 William Suarez, an inmate at the New Jersey State Prison, appeals a final agency decision by the Department of Corrections (DOC), finding him guilty of possessing a cell phone, contrary to prohibited act *.009, N.J.A.C. 10A:4-4.1(a). He argues he was deprived of his right to confrontation, and that the evidence against him was insufficient for the DOC to find him guilty of possession of a cell phone. For the reasons that follow, we affirm.

The following facts were gleaned from the record. In June 2011, the DOC's Special Investigations Division (SID) began receiving information from three confidential witnesses, that appellant had possessed and used a cell phone within the confines of the New Jersey State Prison. Based on this information the SID placed a wiretap on appellant's phone and recorded him making various calls.

Investigator Dolce created a confidential report on appellant's illicit activities, which he provided to the hearing officer. Appellant was thereafter charged with violating prohibited act *.009 of N.J.A.C. 10A:4-4.1(a), and a disciplinary hearing on the charge was held on September 5, 2012. Appellant's counsel-substitute contended that the confidential information used as evidence of the violation was inadequate. The hearing officer, serving as the trier of fact, nevertheless found appellant guilty as charged based on the evidence reflected in Investigator Dolce's report.

Appellant appealed, arguing, again, that the evidence was insufficient to sustain the charge, and that he was improperly denied a request for confrontation of the witness. Superintendent Lawrence upheld the decision of the hearing officer. Appellant subsequently appealed, and on October 8, 2013, we vacated the DOC finding and we remanded the matter for a new disciplinary hearing, requiring that appellant be given the opportunity to present confrontation questions to Investigator Dolce. Suarez v. Dep't of Corrections, No. A-1516-12 (App. Div. Oct. 8, 2013).

At the second disciplinary hearing, after several adjournments, the hearing officer presented appellant's questions to Investigator Dolce. Appellant and his counsel-substitute were provided the opportunity to listen to the wiretap conversations, which they declined. Ultimately, the hearing officer sustained the charge and sanctioned appellant to fifteen days' detention; permanent loss of contact visits; and 365 days' loss of telephone privileges. Appellant filed an appeal, arguing that he was not served the disciplinary report within forty-eight hours. Associate Administrator Camps upheld the hearing officer's decision. This appeal followed.

Appellant now argues that the manner in which his confrontation questions were presented to Investigator Dolce was inadequate because the investigator's answers were vague, and that he was not permitted to hear the testimony.

Generally, we will not consider any issue that an appellant failed to raise before a trial tribunal, unless it pertains to the jurisdiction of the tribunal or concerns matters of substantial public interest. State v. Robinson, 200 N.J. 1, 20-22 (2009). Because appellant's argument is neither jurisdictional nor one of substantial public interest, we need not analyze it further. Nonetheless, we affirm. Our review of the record reveals that appellant was given an opportunity to hear the audio recording, which he declined. This court already remanded this case to allow appellant to present confrontation questions to the investigator accusing him of the prohibited act. It is our understanding that these questions are submitted by the inmate and then typically posed by the hearing officer to the witness. Because this is exactly what occurred here, we see no error under these circumstances.

Appellant also submits, as he has throughout the case, that there was insufficient evidence to support the charge. Our review of an administrative agency's decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "[A]n appellate court will not upset an agency's ultimate determination unless the agency's decision is shown to have been 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" Barrick v. State, 218 N.J. 247, 259 (2014) (second alteration in original) (quoting Stallworth, supra, 208 N.J. at 194).

"In applying that standard of review, 'an appellate court does not substitute its judgment . . . for that of [the] administrative agency.'" Id. at 260 (alteration in original) (quoting In re Young, 202 N.J. 50, 70 (2010)). Rather, the "court's inquiry is limited to: (1) whether the agency's action violated the legislative policies expressed or implied in the act governing the agency; (2) whether the evidence in the record substantially supports the findings on which the agency's actions were premised; and (3) 'whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.'" Ibid. (quoting In re Carter, 191 N.J. 474, 482 (2007)).

Given the hearing officer's summary of the confidential report, which included witness testimony and the wiretap - to which appellant declined to listen - there is more than enough evidence to support the charge that appellant possessed a cell phone in violation of N.J.A.C. 10A:4-4.1(a), prohibited act *.009. Furthermore, this case does not violate the seminal case for prisoner's rights, Avant v. Clifford, 67 N.J. 496, 524 (1975), superseded on other grounds by N.J.S.A. 52:14B-1 et seq.

Appellant questions the fourth protection afforded to prisoners during disciplinary matters the limited right to confront and cross-examine adverse witnesses. Ibid. (emphasis added). "The opportunity for confrontation and cross examination shall be provided to the inmate in such instances where the Adjustment Committee deems it necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved." Id. at 529-30. Again, though the record is somewhat flawed, appellant's questions were submitted to Investigator Dolce, which was all we required on remand.

Affirmed.