Opinion
DOCKET NO. A-1316-13T3
03-23-2015
RICARDO FREENY, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Ricardo Freeny, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Administrative Decision of the New Jersey Department of Corrections. Ricardo Freeny, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). PER CURIAM
Appellant Ricardo Freeny appeals the final administrative agency decision of the Department of Corrections (DOC) finding him guilty of prohibited act *.003, "assaulting any person with a weapon," in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
We discern the following facts and procedural history from the record on appeal. Freeny is currently an inmate at New Jersey State Prison in Trenton, but was confined at East Jersey State Prison in Rahway at the time the events underlying this appeal took place.
Freeny is serving a thirty-year sentence, with a fifteen-year period of parole ineligibility.
On September 14, 2013, Freeny was playing horseshoes with three fellow inmates, including John Miller. After Freeny and Miller began arguing about the score, Freeny threw two horseshoes at Miller. One of them struck Miller in the head, resulting in lacerations on the top of his head, forehead, right temple, and right eye. Miller was taken to the infirmary. Stitches were required to close several of the lacerations.
Freeny was charged with prohibited act *.003, and placed in prehearing detention. Following an investigation, Freeny was served with formal charges on September 17. The disciplinary hearing began on September 18, but was adjourned so the hearing officer could review the report and related documents. The hearing was adjourned several more times to facilitate Freeny's requests for confrontation of two corrections officers and then one of the investigators.
The hearing took place on October 2, at which time Freeny was represented by a counsel substitute. Freeny pled not guilty, explaining that he did not know what happened to Miller. Counsel substitute argued that there was insufficient evidence to find Freeny guilty.
After reviewing the reports, confidential and non-confidential witness statements, confrontation responses, and photographs of Miller's injuries, the hearing officer found Freeny guilty. He imposed sanctions consisting of fifteen days detention, with credit for time served, 365 days of administrative segregation, 365 days loss of commutation time, and thirty days loss of recreation privileges. Freeny filed an administrative appeal, which was denied. This appeal followed.
On appeal, Freeny raises the following arguments:
POINT I: THE DECISION OF THE DISCIPLINARY HEARING OFFICER MUST BE REVERSED AS THE DECISION IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD.
POINT II: THE HEARING OFFICER'S IMPERMISSIBLE COMMENTS ON FREENY'S EXERCISE OF HIS DUE PROCESS RIGHTS DURING HER SUMMATION VIOLATED FREENY'S RIGHT TO A FAIR HEARING AND RENDERS THE DECISION UNRELIABLE (Not Raised Below).
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). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision 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). Substantial evidence constituting fair support is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).
Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).
Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). The DOC must facilitate an informal hearing to ensure that disciplinary findings are based upon verified facts and the use of discretion is informed by accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that the DOC's regulations for disciplinary hearings "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.
Our review of the record before us in light of the applicable law convinces us that Freeny's arguments are without merit. Although they do not warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), we add the following.
The decision finding Freeny guilty of prohibited act *.003 was based on substantial credible evidence in the record, including confidential statements. Freeny received the procedural rights enumerated by Avant, supra, 67 N.J. at 523, including written notice of the charges, a limited right to present evidence, and the opportunity for witness confrontation. He also had the assistance of a counsel substitute. We find no basis in the record for Freeny's assertion that the hearing officer was biased, even if the hearing officer expressed some level of annoyance that Freeny was difficult before and during the hearing process.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION