Opinion
DOCKET NO. A-3957-12T4
04-02-2015
JEROME SINGLETARY, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Jerome Singletary, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the New Jersey Department of Corrections. Jerome Singletary, 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
Jerome Singletary, an inmate at the Adult Diagnostic and Treatment Center in Avenel (facility), appeals from a final decision of the New Jersey Department of Corrections (DOC), which found he committed prohibited acts .051, engaging in sexual acts with others, *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, and .402, being in an unauthorized area, all in violation of N.J.A.C. 10A:4-4.1(a). As a result of the adjudication, Singletary was sanctioned to an aggregate twenty-five days of detention, 330 days of administrative segregation, 300 days loss of commutation time, and thirty days loss of recreation privileges.
On appeal, Singletary raises the following claims:
POINT I: APPELLANT WAS DENIED DUE PROCESS IN THAT THERE WAS NO[] 'SUBSTANTIAL EVIDENCE' TO SUPPORT A FINDING OF GUILT AND VIOLATIONS OF TITLE § 10A.Having thoroughly considered these arguments and the record before us, we affirm.
POINT II: APPELLANT WAS DENIED DUE PROCESS IN THAT THE DHO NEVER STATES HER REASON FOR FINDING THE APPELLANT GUILTY.
POINT III: VINDICTIVE PROSECUTION[,] APPELLANT RECEIVED EXCESSIVE SANCTIONS DISPARITY IN SENTENCING.
On March 8, 2013, around 9:40 a.m., Senior Corrections Officer Joseph Falduto witnessed Singletary and another inmate, Jorge Jimenez, engaged in a sexual act in the storage area of the kitchen. Both inmates had their pants and underwear down around their ankles. Falduto told them to separate, which they did. He then called other officers to assist. The officers confiscated Singletary's clothing, and placed it in evidence storage. The next day, Sergeant M. Gutto served Singletary with the charges and conducted an investigation. In addition to Falduto's report, Sergeant J. Muniz reported he witnessed Singletary and Jimenez in the storage area. Gutto determined that both inmates worked in the kitchen but neither had permission to be in the storage area; the inmates "were engaging in sexual acts with each other during the performance of their duties as kitchen workers;" and, the inmates' conduct "disrupted the orderly running of the correctional facility because the main kitchen operations were significantly impacted." Accordingly, Gutto determined the charges had merit and referred the matter to a hearing officer for adjudication.
On March 11, 2013, the disciplinary hearing commenced before Hearing Officer Nolley. Singletary pled not guilty to the charges and requested the assistance of counsel substitute, which the hearing officer granted. The hearing officer postponed the matter to permit Singletary to obtain Jimenez's statement.
When the hearing resumed on March 13, 2013, counsel substitute argued that the two inmates were engaged in "a lot of horseplay," not sex. He submitted a statement by Jimenez that read: "Someone was trying to have his way with me, but that never happen [sic]. He was holding me from behind but he told me that he was playing. It look like [sic] he was. I guess he wasn't." Singletary declined the opportunity to confront any adverse witnesses and did not make a statement.
Following the hearing, the hearing officer considered several documents, including statements made by prison officers and Jimenez. The hearing officer credited Falduto's report of the incident and found Jimenez's statement supported the charges. The hearing officer showed Singletary and his counsel substitute the adjudication report and the evidence she considered. The counsel substitute signed line sixteen of the adjudication report, indicating that the information accurately reflected what occurred at the adjudication hearing.
The hearing officer found Singletary guilty of all charges and imposed concurrent sanctions. Singletary filed an administrative appeal, arguing that the evidence did not support the charges. He requested leniency and a reduction in the sanctions. On May 15, 2013, Assistant Superintendent Davis upheld the decision of the hearing officer and the sanctions. Singletary now appeals that decision.
Singletary argues there is not substantial evidence to support the charges. He contends that Falduto's report was arbitrarily and vaguely written. The lack of specificity in the report deprived him of notice, and therefore, the ability to prepare a defense. Specifically, he claims the notice fails to state whether he or Jimenez were in a state of sexual arousal, or if penetration, oral sex, or fondling had occurred.
The scope of our review of an agency decision is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). "Our role is to engage in a 'careful and principled consideration of the agency record and findings.'" DeCamp v. N.J. Dep't of Corr. , 386 N.J. Super. 631, 636 (App. Div. 2006) (quoting Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry, supra, 81 N.J. at 579-80).
A prisoner facing a disciplinary action must be afforded written notice "to inform him of the charges and to enable him to marshal the facts and prepare a defense." Avant v. Clifford, 67 N.J. 496, 525 (1975). That notice "must specify as precisely as reasonably possible, just what the accused is said to have done." Daley v. Dep't of Corr., 331 N.J. Super. 344, 351 (App. Div. 2000).
Singletary's March 9, 2013 notice of his disciplinary charges included Falduto's statement that he witnessed Singletary "engaging in a sexual act with Inmate Jimenez." In addition, the Special Custody Report, prepared by Falduto, reads, in pertinent part:
I entered the storage area and saw Inmate Singletary, Jerome [] engaged in a sexual act with inmate Jimenez, Jorge []. Both Inmates['] pants and undergarments were pulled down. Inmate Singletary was positioned behind Inmate Jimenez. Inmate Jimenez was bent over in front of Inmate Singletary. I gave a verbal command to separate, they complied.
Contrary to Singletary's assertions, these reports are more than sufficient to inform him of the conduct underlying the charges. We cannot see how Singletary's defense suffered any prejudice as a result of Falduto's failure to describe in greater detail what he witnessed. Thus, we conclude Singletary received adequate notice of the disciplinary charges.
Next, Singletary for the first time on appeal disputes the *.306 charge for disrupting facility operations and challenges the sanctions as excessive. We do not review questions that were not raised before the administrative agency "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Accordingly, we will not review these claims as they do not "affect the jurisdiction of the trial court or concern matters of great public interest." Id. at 234.
We only add that Singletary had an opportunity to raise these arguments during the disciplinary hearing or in his administrative appeal. He had been advised of his procedural due process rights by the hearing officer. He was permitted to offer a written statement at the hearings and to confront and cross-examine adverse witnesses. The record is devoid of any instance where either Singletary or counsel substitute were precluded from presenting a defense or challenging the evidence. Lastly, Singletary's counsel substitute signed the adjudication report acknowledging the accuracy of what occurred at the hearing. As a result, we will not review this claim as it does not "affect the jurisdiction of the trial court or concern matters of great public interest." Id. at 234. We are satisfied that the proofs relied upon by the hearing officer and the assistant superintendent provided the required "substantial" evidence to support the disciplinary violation and that the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION