COURTOF JEWELL R ANDERSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4071-14T1

JEWELL R. ANDERSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________

January 6, 2017

Submitted December 8, 2016 Decided

Before Judges Hoffman and O'Connor.

On appeal from the New Jersey Department of Corrections.

Jewell R. Anderson, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, an inmate in Bayside State Prison serving a nine-year sentence for theft and various bad check offenses, appeals from the January 8, 2015 Department of Corrections (DOC) decision adjudicating him guilty of institutional infraction *.101, escape, N.J.A.C. 10A:4-4.1(a). We affirm.

In 2014, appellant was transferred from Bayside State Prison toFletcher House, a halfway house, where he began participation in a residential community release program. When admitted into Fletcher House, appellant signed a document indicating he received the rules of the release program. Under the terms of the program, he was permitted to be employed, and shortly after his arrival began to work at a local gym. The rules provided a resident was required to make accountability calls to Fletcher House at prescribed times during the day; these calls included the time the resident arrived and departed from his place of employment.

On December 30, 2014, appellant went to work and made an arrival call to Fletcher House at 7:23 a.m. and an accountability call at noon, but he failed to make his departure call from the job site at 5:00 p.m. A staff person at Fletcher House called his workplace and learned appellant was not present.

Because he was absent from his place of employment, appellant was charged with *.101, escape, N.J.A.C. 10A:4-4.1(a). An inmate commits an escape if he or she "leaves the residential community program without the authorization of the Director or designee[,]" N.J.A.C. 10A:20-4.37(a)(1), or "cannot be contacted at the destination to which the inmate has been granted temporary leave[,]" N.J.A.C. 10A:20-4.37(b).

At the disciplinary hearing, appellant pled not guilty and was assigned counsel substitute. According to his statement to the hearing officer, appellant was arrested at work between 2:30 p.m. and 3:00 p.m. because of outstanding warrants. He also stated the DOC picked him up from the county jail at the time of the call because of "cashing a check off site."

Because he had been unavailable due to an arrest, counsel substitute contended appellant should not be deemed to have committed an act of escape but, rather, to have committed infraction .257, violating a condition of any community release program, N.J.A.C. 10A:4-4.1. Counsel substitute argued appellant's actions merely amounted to a failure to call into the program at a designated time required by the rules.

The hearing officer found appellant guilty of escape, and sanctioned him to fifteen days of detention, 365 days of administrative segregation, the loss of 365 days of commutation time, and the loss of thirty days of recreation privileges.

One of the reports the hearing officer relied upon was issued by the Glassboro Police Department. This report revealed that, at 2:13 p.m. on December 30, 2014, the manager at United Check Cashing in Glassboro called the police because appellant had attempted to cash a "fake" check. After leaving United Check Cashing, appellant was observed entering a vehicle occupied by a female and a juvenile. The police subsequently arrested appellant because he had been charged with "bad checks" and had outstanding municipal warrants; appellant was placed in the county jail and bail was set at $25,000.

Although he had access to the evidence the hearing officer reviewed, appellant failed to refute or in any way counter the contents of the police report or the other evidence the hearing officer considered. Appellant was offered but declined the opportunity to call any witnesses on his behalf or to cross-examine any adverse ones.

The hearing officer's written findings included the following

Pleads not guilty, offers no evidence to contradict [statements and reports]. [Inmate] failed to make departure call and when job contacted by [Fletcher House] staff[,] they were informed [inmate] out of office. [Inmate] statement noted but does not exonerate[,] as [inmate] did not have permission to be off site and was in process of committing a crime while off work site. Charge has merit.

Appellant filed an administrative appeal but, on January 8, 2015, the Administrator affirmed the hearing officer's findings and sanctions. The Administrator clarified

Your escape technically occurred when you left your work site "unauthorized" and proceeded to commit another crime. However, since the DOC and [community release program] were unaware of your earlier deviation from your work site, your escape warrant became official at 5:15 after it was discovered that you had not been at your work site to make your departure call.

On appeal, among other things, appellant contends he was detained by the police away from his job site due to the outstanding municipal warrants that existed before he was sentenced on the charges for which he was later housed in Fletcher House. He argues he should not be found guilty of escape when his inability to make the scheduled 5:00 p.m. call arose from conduct predating his sentence and ultimate admission into Fletcher House.

Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). We will not disturb the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable. Circus Liquors, supra, 199 N.J. at 9. Further, decisions of administrative agencies carry with them a presumption of reasonableness. 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).

An appellate court may not reverse an agency's determination "even if [the] court may have reached a different result had it been the initial decision maker." Circus Liquors, supra, 199 N.J. at 10. Stated otherwise, a court "may not simply 'substitute its own judgment for the agency's.'" Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)). When reviewing a final determination of the DOC in a prisoner disciplinary matter, we consider whether there exists substantial evidence the inmate committed the alleged prohibited act. Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995); McDonald v. Pinchak, 139 N.J. 188, 200-01 (1995).

Having considered the record in light of the foregoing principles, we conclude sufficient credible evidence in the record supports the DOC's determination appellant was guilty of escape. The hearing officer relied, in part, upon the police report. That report revealed appellant left his job site to go to a check cashing business, where he allegedly cashed a bad check. He was subsequently arrested for bad checks, N.J.S.A. 2C:21-5, as well as for the outstanding warrants.

At the disciplinary hearing, appellant did not refute the contents of the police report. There was no evidence refuting he was arrested, in part, for allegedly committing a new offense. Moreover, the new offense occurred while appellant was away from his workplace without permission.

Appellant's argument he should not be deemed to have escaped because his absence from the workplace was due to warrants drawn before his sentence was imposed is without merit. First, appellant was away from his workplace without permission on December 30, 2014, and second, the arrest on the new offense contributed to his inability to make his 5:00 p.m. departure call from his job site.

Thus, there clearly exists substantial evidence appellant committed the alleged prohibited act. After carefully considering the record and the briefs, we conclude appellant's remaining arguments are either without sufficient merit to warrant discussion in a written opinion, see R. 2:11-3(e)(1)(E), or were not raised before the agency. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012).