Opinion
DOCKET NO. A-4302-11T1
05-03-2013
MITCHELL D. YASUK, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Mitchell D. Yasuk, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from the New Jersey Department of Corrections.
Mitchell D. Yasuk, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief). PER CURIAM
Mitchell D. Yasuk, an inmate at the Adult Diagnostic and Treatment Center (ADTC) appeals from a final decision of the Department of Corrections (DOC) to demote him to Phase I of the
Yasuk entered guilty pleas to criminal attempt, N.J.S.A. 2C:5-1, and attempting to lure or entice a minor into a motor vehicle, N.J.S.A. 2C:13-6. He was sentenced on March 25, 2010, to an aggregate sentence of six years with five years parole ineligibility and parole supervision for life. N.J.S.A. 2C:47-8 explicitly provides that
[A] term of imprisonment imposed on a person confined to the Adult Diagnostic and Treatment Center . . . shall not be reduced by progressive time credits or credits for diligent application to work and other institutional assignments for any year or fractional part of a year if the person failed to fully cooperate with all treatment offered to him during that time period.
[Emphasis added.]
On April 20, 2010, Yasuk signed a written acknowledgment that he had received a copy of this statute. An inter-office memorandum from ADTC notes that, in addition, "inmate Yasuk was told at his orientation at the ADTC of other consequences to his failure to fully participate in therapy, including a demotion in his treatment phase which implicates and restricts his job opportunities." (Emphasis added).
On October 13, 2011, Yasuk was interviewed by the treatment team and advised that his participation in treatment was unsatisfactory. The therapy report of the ADTC Special Classification Review Board states that he "did not cooperate with the treatment program for the months of April, May, August, and September 2011." His therapeutic progress was described as follows:
During this review period, Mr. Yasuk attended his process group 100% of the time. He has not been an active participant in his process group. He has remained completely silent for a significant amount of the review period, over half. His overall participation is minimal. This lack of participation has remained consistent even after challenging by staff to increase his participation. Mr. Yasuk successfully completed the Clear Thinking module this review period, but it was noted in the records that his participation was limited to low throughout the module. Mr. Yasuk is strongly challenged to be an active member of the treatment program and work toward his assigned treatment goals. Mr. Yasuk is not on the mental health roster. No work or housing reports were available for this review. No charges were incurred this review period.The treatment team recommended further inpatient treatment and a demotion to Phase I.
In February 2012, Yasuk was given written notice that the ADTC's Classification Committee was scheduled to consider him for loss of commutation and work credits at its February 15, 2012 meeting based upon his lack of participation in treatment during the periods April 1 to May 31, 2011, and August 1 to September 30, 2011. The notice advised Yasuk that he would be to this consideration at the aforementioned meeting," and that he could obtain the assistance of a counsel substitute to act on his behalf. The record for the hearing reflects that Yasuk declined the services of a counsel substitute. The record also notes that the reason for the hearing, the nature of the proceeding, and the particular areas of concern for the Classification Committee were reviewed with Yasuk. His response to those concerns was recorded as: "he attends group 100% of the time, participation in group maybe [sic] a problem."
The Classification Committee approved Yasuk's demotion to Phase I and the removal of thirty-two days of commutation credits and 17.6 work credits. It directed further that Yasuk be given a new job. Yasuk appealed only that part of the decision that resulted in his demotion and loss of job. The DOC upheld the decision of the Classification Committee.
Appellant presents the following arguments for our consideration:
Although Yasuk raised additional arguments in his reply brief, it is improper to raise issues for the first time in a reply brief, Goldsmith v. Camden Cnty. Surrogate's Office, 408 N.J. Super. 376, 387 (App. Div.), certif. denied, 200 N.J. 502 (2009), and we will not consider such arguments.
POINT I
THE APPELLANT HAS A RIGHT TO DUE PROCESS. AN APPELLANT OF AN ADVERSE ADMINISTRATIVE
DECISION HAS A RIGHT TO JUDICIAL REVIEW OF DISCRETION, ARBITRARY AND CAPRICIOUS ACTIONS IN THE PROCESS. NEW JERSEY CONSTITUTION 1947, ART. VI § 5, ¶ 4; R. 2:2-3(a)(2). EXHAUSTION OF ADMINISTRATIVE REMEDIES IS REQUIRED.
POINT II
THE CLASSIFICATION COMMITTEE VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS BY REFUSING TO PRODUCE ANY EVIDENCE OF APPELLANT'S LACK OF COOPERATION IN THERAPY.
Our review of the DOC's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).
We first address Yasuk's argument that he was denied due process in the disciplinary procedure. An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33.
The record shows that the disciplinary process here did not violate appellant's due process rights. We also find no merit to Yasuk's challenge to his demotion to Phase I and the loss of his job. Sex offender treatment is an essential part of confinement at ADTC. An offender may only be sentenced to ADTC if he or she "is amenable to sex offender treatment and is willing to participate in such treatment[.]" N.J.S.A. 2C:47-3(a). As noted, the failure to fully cooperate in such treatment warrants the removal of good time and work credits, part of the sanction that Yasuk does not challenge. He was advised at orientation that the consequences of a failure to fully participate in therapy included a demotion in his treatment phase, which would implicate and restrict his job opportunities. And, ultimately, determinations as to his work assignments and treatment phase resided within the broad discretion of the Commissioner of the Department to administer the institution. See Jenkins v. Fauver, 108 N.J. 239, 252 (1987).
In addition, Yasuk argues that the evidence was insufficient to support the conclusion that he had "failed to cooperate to the standards of case law or the therapist" because it was limited to the therapist's report. The fact that Yasuk was physically present at therapy sessions fails to undercut the appraisal that he had not fully cooperated with treatment. His argument is belied by his own concession to the Classification Committee that "participation in group maybe [sic] a problem[,]" a concession consistent with the evaluation of his therapy. There was, then, substantial credible evidence in the record to support the decision that Yasuk had not fully cooperated with treatment, meriting sanction.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION