CALVIN BASS 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NOT FOR PUBLICATION WITHOUT THE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-0797-16T4

CALVIN BASS,

        Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

        Respondent.


              Submitted March 13, 2018 – Decided March 22, 2018

              Before Judges Carroll and Mawla.

              On appeal from the New Jersey Department of
              Corrections.

              Calvin Bass, appellant pro se.

              Gurbir S. Grewal, Attorney General, attorney
              for respondent (Jason W. Rockwell, Assistant
              Attorney General, of counsel; Kevin J.
              Dronson, Deputy Attorney General, on the
              brief).

PER CURIAM

        Calvin Bass, a State prisoner serving a lengthy sentence,

appeals      from   a    final   agency   decision     of   the   Department       of
Corrections finding he committed prohibited act .053, indecent

exposure, in violation of N.J.A.C. 10A:4-4.1(a)(3)(v).            We affirm.

       According to the Department's proofs, Senior Corrections

Officer M. Thornton was conducting an inmate count on the prison's

mezzanine when she heard Bass call her.             Thornton then observed

Bass standing at his cell door, watching her and masturbating.

Thornton      immediately   called    for      assistance.     Prison     staff

responded and removed Bass from his cell.

       Bass was given timely notice of the charge and afforded the

assistance of counsel substitute. He entered a plea of not guilty,

stating the incident "didn't happen."              His request to confront

Thornton was granted.       Bass also obtained a witness statement from

his cellmate, who wrote that he "was asleep and awoken by Bass

yelling for Mrs. Thornton at the door."            The cellmate elaborated:

"I sleep with a hat over my eyes and did not see anything besides

[Bass] standing at the door."

       After considering the evidence, the hearing officer found

Bass guilty.     The hearing officer determined that "[c]onfrontation

revealed no discrepancies" in Thornton's account of events, and

that    the    cellmate's    statement      confirmed   that    Bass     yelled

Thornton's name as the incident unfolded.            Consequently, Bass was

sanctioned      to   time    served       in    detention,     ninety     days'

administrative segregation, sixty days' loss of commutation time,

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and fifteen days' loss of recreational privileges.          Bass filed an

administrative appeal to the prison administrator, who upheld the

finding and the sanction.

     Before us, Bass argues there was insufficient evidence to

support the finding that he was guilty of the indecent exposure

charge.     Also, for the first time on appeal, Bass contends the

hearing officer was biased "by allowing [Thornton's sister] who

works     [c]ourtline   to    be   present   during   the   disciplinary

proceedings."

     Having considered these arguments in light of the record and

the applicable law, we find no merit to these contentions.               R.

2:11-3(e)(1)(D).    We add only a few brief comments.

     We generally do not disturb the Department's administrative

decision to impose disciplinary sanctions upon an inmate, unless

the inmate demonstrates the decision is arbitrary, capricious, or

unreasonable, or that the record lacks substantial evidence to

support that decision.       Figueroa v. N.J. Dep't of Corr., 
414 N.J.

Super. 186, 190 (App. Div. 2010).        Bass has failed to do so here.

The hearing officer was entitled to credit Thornton's account that

Bass called out to her, and that upon looking into his cell, she

observed Bass masturbating while watching her.        Additionally, the

cellmate's statement confirmed that Bass did indeed call out to

Thornton, while discrediting Bass's assertion that the incident

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"didn't happen." We conclude there is sufficient credible evidence

in the record to support the finding of guilt.

     We also reject Bass's argument that his due process rights

were violated by the hearing officer allegedly allowing Thornton's

sister to be present at the disciplinary proceedings.               We first

observe   that    this   newly-minted     argument   finds   no   evidentiary

support in the record.        Moreover, because Bass never raised this

issue during the disciplinary proceedings or in his administrative

appeal,   in     conformity   with   general    principles    of    appellate

practice, we decline to consider it on appeal.                See Nieder v.

Royal Indem. Ins. Co., 
62 N.J. 229, 234 (1973) (discussing the

limited circumstances in which an appellate court will consider

an argument first raised on appeal).

     Affirmed.




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