JAMES CATONA VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1743-17T4
JAMES CATONA,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Argued telephonically January 24, 2019 –
Decided February 11, 2019
Before Judges Gooden Brown and Rose.
On appeal from the New Jersey Department of
Corrections.
James Catona, appellant pro se.
Michael E. Vomacka, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Michael E. Vomacka, on
the brief).
PER CURIAM
New Jersey State Prison Inmate James Catona appeals from the September
14, 2017 final agency decision of the New Jersey Department of Corrections
(NJDOC), upholding the hearing officer's guilty finding and imposition of
sanctions for committing prohibited act *.004, fighting with another person, in
violation of N.J.A.C. 10A:4-4.1. We affirm.
The disciplinary charge stemmed from a September 7, 2017 incident that
occurred in the inmate housing area at South Woods State Prison. When Senior
Corrections Officer (SCO) Edwin Velez went to investigate the commotion he
heard coming from that area, he observed Catona and his cellmate, Shawn
Morris-Greene, "engaged in a fist fight." Both inmates complied with an order
to stop, and were charged with fighting. An examination by the nurse revealed
no injuries to Morris-Greene, but facial contusions with no open wounds or
active bleeding to Catona.
Catona was served with the disciplinary charge the following day. An
investigation revealed the charge had merit and was referred for a hearing, which
was conducted on September 12, 2017, after a one-day postponement. At the
hearing, Catona pled not guilty, was granted counsel-substitute, and declined the
opportunity to either call or confront witnesses. The disciplinary hearing officer
(DHO) considered all the evidence, including the incident reports in which
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Velez recounted observing the inmates "exchanging blows with each other[,]"
the medical report describing the inmates' injuries, as well as Catona's statement
that Morris-Greene "started the fight" and that he (Catona) "tried calling for
help" and had "never [thrown] a punch."
In finding Catona guilty of the charge, the DHO credited Velez' account
of the incident and concluded that self-defense was not supported by the
evidence, particularly since Morris-Greene had also pled not guilty.1 Noting
that Catona must he held accountable for his actions, as well as the need to deter
such conduct and promote a safe, secure, and orderly facility, the DHO imposed
a sanction of ninety-one days in administrative segregation and fifteen days loss
of commutation credits.
Catona filed an administrative appeal and, on September 14, 2017, the
South Woods State Prison Associate Administrator upheld the DHO's decision
and sanctions, noting there was "no misinterpretation of the facts." Catona's
request for leniency was also denied. This appeal followed.
1
Under N.J.A.C. 10A:4-9.13(f), an "inmate claiming self-defense shall be
responsible for presenting supporting evidence" that "[t]he inmate was not the
initial aggressor[,]" "did not provoke the attacker[,]" and "had no reasonable
opportunity or alternative to avoid the use of force"[;] and that "[t]he use of
force was not by mutual agreement[,]" "was used to defend against personal
harm," and "was reasonably necessary for self-defense[.]"
A-1743-17T4
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On appeal, Catona raises the following points for our consideration:
POINT I
THE FINAL AGENCY DECISION OF THE NJDOC
MUST BE REVIEWED BECAUSE THE HEARING
OFFICER'S DECISION TO RESOLVE THE
CREDIBILITY DISPUTE SOLELY ON THE
ASSUMPTION THAT SCO VELEZ HAD NO
REASON TO FABRICATE ALLEGATIONS
AGAINST INMATES, LACKS BOTH THE FORM
AND SUBSTANCE OF A FAIR HEARING[.]
POINT II
THE FINAL AGENCY DECISION OF THE NJDOC
MUST BE REVERSED BECAUSE APPELLANT
WAS DENIED THE RIGHT TO CONFRONT AND
CROSS-EXAMINE THE ACCUSING OFFICER,
AND HE WAS FURTHER DENIED THE
OPPORTUNITY TO QUESTION THE
EYEWITNESSES. THUS, APPELLANT'S DUE
PROCESS RIGHTS TO CONFRONTATION AND
CROSS-EXAMINATION, AND HIS LITIGATION
RIGHT TO WITNESS ACCESS, WERE DENIED BY
THE PROCEDURE CONDUCTED[.]
POINT III
THE ISSUE ON APPEAL INVOLVES THE PUBLIC
INTEREST, CONSISTENT WITH BASIC
PROTECTIONS IN OUR SYSTEM OF
ADJUDICATION, ESPECIALLY IN MATTERS
WITH PENAL QUALITIES, AND SPECIFICALLY
IN PRISON INMATE DISCIPLINE PROCEEDINGS,
PURSUANT TO [N.J.A.C. 10A:4-9.13(A) to 9.14(A).]
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POINT IV
THE DECISION OF THE DISCIPLINARY HEARING
OFFICER MUST BE REVERSED BECAUSE IT WAS
ARBITRARY, CAPRICIOUS, OR UNREASONABLE,
AND NOT SUPPORTED BY CREDIBLE
EVIDENCE[.]
"Our role in reviewing the decision of an administrative agency is
limited." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div.
2010). "We defer to an agency decision and do not reverse unless it is arbitrary,
capricious[,] or unreasonable[,] or not supported by substantial credible
evidence in the record." Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259
(App. Div. 2010). "'Substantial evidence' means 'such evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Figueroa, 414 N.J.
Super. at 192 (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376
(1961)).
When reviewing a determination of the NJDOC in a matter involving
prisoner discipline, we engage in a "'careful and principled consideration of the
agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197,
204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of
Consumer Affairs of Dep't of Law & Public Safety, 64 N.J. 85, 93 (1973)). We
consider not only whether there is substantial evidence that the inmate
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committed the prohibited act, but also whether, in making its decision, the
NJDOC followed regulations adopted to afford inmates procedural due process.
See McDonald v. Pinchak, 139 N.J. 188, 194-96 (1995).
"Prison disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due a defendant in such proceedings does not
apply." Jenkins v. Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v.
McDonnell, 418 U.S. 539, 556 (1974)). However, the inmate's more limited
procedural rights, initially set forth in Avant v. Clifford, 67 N.J. 496, 525-46
(1975), are codified in a comprehensive set of NJDOC regulations. N.J.A.C.
10A:4-9.1 to 9.28.
Those rights include an inmate's entitlement to written notice of the
charges at least twenty-four hours prior to the hearing, N.J.A.C. 10A:4-9.2, a
fair tribunal, N.J.A.C. 10A:4-9.15, a limited right to call witnesses and present
documentary evidence, N.J.A.C. 10A:4-9.13, a limited right to confront and
cross-examine adverse witnesses, N.J.A.C. 10A:4-9.14, a right to a written
statement of the evidence relied upon and the reasons for the sanctions imposed,
N.J.A.C. 10A:4-9.24, and, in certain circumstances, the assistance of counsel-
substitute, N.J.A.C. 10A:4-9.12. Those regulations "strike the proper balance
between the security concerns of the prison, the need for swift and fair
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discipline, and the due-process rights of the inmates." Williams, 330 N.J. Super.
at 203 (citing McDonald, 139 N.J. at 202).
Applying these principles, we are satisfied that there was substantial
credible evidence in the record to support the finding of guilt, and Catona
received all the procedural due process he was entitled to, despite his assertions
to the contrary. In addition, the sanctions imposed were commensurate with the
severity of the infraction and authorized under N.J.A.C. 10A:4-5.1(a) for an
asterisk offense. Asterisk offenses "are considered the most serious and result
in the most severe sanctions[.]" N.J.A.C. 10A:4-4.1(a).
On June 4, 2018, we granted Catona's motion to supplement the record
with his March 13, 2018 certification, indicating that on September 12, 2017,
after Morris-Greene refused to produce a statement exonerating him of the
charge, he invoked his right to confront and cross-examine both Velez and
Morris-Greene, but the DHO declined his request. However, the record is
devoid of any evidence corroborating Catona's claim.
Instead, the record demonstrates that Catona and his counsel-substitute
declined the opportunity to confront or cross-examine adverse witnesses, and
acknowledged that the information set forth on the Adjudication of Disciplinary
Charge form, including their declination, accurately reflected what took place at
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the hearing. Further, although "the reasons for the denial" of a request for
confrontation and cross-examination "shall be specifically set forth" by the DHO
on the Adjudication of Disciplinary Charge form, N.J.A.C. 10A:4-9.14(f), no
such entry appears on the form to support Catona's account.
Thus, based on this record, we reject Catona's version. Indeed, the
"creation of a clear written record at each disciplinary hearing" through the
completion and execution of the Adjudication of Disciplinary Charge form was
designed "to resolve" these types of discrepancies "at this stage of appellate
review[.]" McDonald, 139 N.J. at 200. Moreover, in his administrative appeal,
Catona never asserted he was denied the opportunity to confront and cross-
examine witnesses. Rather, he "denie[d] having engaged in an exchange of
fists," asserted "he was the victim of an assault[,]" and claimed the DHO "gave
little to no consideration to his statement."
Relying on his March 13, 2018 certification, for the first time on appeal,
in his reply brief, Catona asserts his counsel-substitute was ineffective by failing
to submit exculpatory evidence at the disciplinary hearing. Specifically, Catona
claims counsel-substitute failed to submit a written statement prepared by
Morris-Greene exonerating Catona of the charge, as well as written questions to
be propounded to Velez, both of which Catona claims he supplied to counsel-
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substitute.2 Additionally, Catona contends counsel-substitute was ineffective by
failing to include the DHO's denial of his request to confront and cross-examine
witnesses in his administrative appeal, an appeal Catona claims was filed
without his consent.
Although the assistance of counsel-substitute in prison disciplinary
hearings is not equivalent to the constitutional right to counsel in non-
institutional proceedings, an inmate who receives assistance from a counsel-
substitute who is not "sufficiently competent" has been effectively denied the
due process protections established by the applicable regulation. Avant, 67 N.J.
at 529. However, Catona never claimed ineffective assistance of counsel-
substitute in his administrative appeal. Therefore, we need not consider this
claim on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see
also Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 293 (App. Div. 2001)
(applying Nieder to prison cases).
"Moreover, '[r]aising an issue for the first time in a reply brief is
improper.'" Goldsmith v. Camden Cty. Surrogate's Office, 408 N.J. Super. 376,
387 (App. Div. 2009) (alteration in original) (quoting Borough of Berlin v.
2
Neither the purported exonerating statement nor propounded questions are
included in the record.
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Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001)).
Nevertheless, even if we were to consider the argument, we are satisfied that
Catona was not prejudiced by any deficiency such that there exists a "reasonable
probability that, but for [counsel-substitute's] unprofessional errors, the result
of the proceeding would have been different." Strickland v. Washington, 466
U.S. 668, 694 (1984).
Catona has not demonstrated that the NJDOC's decision was arbitrary,
capricious, unreasonable, or in violation of either the enabling statute or
implementing regulations. See Bowden v. Bayside State Prison, 268 N.J. Super.
301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's
action was arbitrary, unreasonable[,] or capricious rests upon the appellant").
Catona's arguments, those described here and others not fully set forth, are
without sufficient merit to require further discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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