                                NOT FOR PUBLICATION WITHOUT THE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-0813-18T3

SEAN SUTTON,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                    Submitted December 2, 2019 – Decided February 19, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Sean Sutton, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Christopher Josephson, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Petitioner, Sean Sutton, appeals from a final agency decision by the

Department of Corrections (DOC) imposing disciplinary sanctions for fighting

with another inmate. The Disciplinary Hearing Officer found petitioner guilty

of the infraction and imposed a ninety-day loss of commutation credits and a

fifteen-day loss of recreational privileges. The Assistant Superintendent upheld

the conviction and sanctions.

      Sutton contends insufficient evidence was presented to convict him of

fighting and that he received ineffective assistance of substitute counsel at the

hearing. He also raises two interrelated procedural claims: (1) he received less

than the required twenty-four-hour notice before the hearing, and (2) the hearing

was held in his absence. He raises both of these procedural contentions for the

first time on this appeal. Although we may decline to consider issues not raised

below, we choose in this instance to address Sutton's procedural arguments and

to reverse his conviction for fighting. We remand for a new hearing at which

he shall be assured an opportunity to participate.

                                        I.

      Sutton raises the following points for our consideration:

            POINT I

            THE HEARING OFFICER'S (DHO) GUILTY
            FINDINGS OF THE *004 INFRACTION AND THE

                                                                         A-0813-18T3
                                        2
ADMINISTRATOR'S UPHOLDING OF THAT
FINDING WAS ARBITRARY, CAPRICIOUS, AND
UNREASONABLE, AS IT WAS NOT BASED ON
SUBSTANTIAL EVIDENCE IN THE RECORD.

POINT II

THE [PETITIONER] WAS DENIED HIS RIGHT TO
DUE PROCESS.

     A. THE DEPARTMENT'S FAILURE TO
     INVESTIGATE AND ITS DENIAL OF
     [PETITIONER'S] REQUEST FOR VIDEO
     FOOTAGE DENIED HIM HIS RIGHT TO
     DUE PROCESS.

     B. THE DEPARTMENT'S DISREGARD
     FOR THE [PETITIONER'S] RIGHT TO
     [TWENTY-FOUR]    HOUR    NOTICE
     DENIED HIM HIS RIGHT TO DUE
     PROCESS.

     C. THE DEPARTMENT'S FAILURE TO
     INVESTIGATE AND ITS DENIAL OF
     [PETITIONER'S] REQUEST FOR VIDEO
     FOOTAGE DENIED HIM HIS RIGHT TO
     DUE PROCESS.

POINT III

THE INEFFECTIVE ASSISTANCE OF COUNSEL
SUBSTITUTE DENIED THE [PETITIONER] HIS
RIGHT TO DUE PROCESS, AS HE FAILED TO
ADVISE THE [PETITIONER] OF HIS RIGHT TO
REQUEST A POLYGRAPH EXAMINATION.




                                           A-0813-18T3
                    3
                                       II.

      We begin our analysis by acknowledging the legal principles we must

apply, including the deference we owe to administrative agencies. "The judicial

capacity to review administrative agency decisions is limited." Brady v. Bd. of

Review, 152 N.J. 197, 210 (1997). We may disturb a final agency action only

if it is arbitrary, capricious, or unreasonable.    Id. at 210.    We defer to

administrative agencies in recognition of their "expertise and superior

knowledge of a particular field." Greenwood v. State Police Training Ctr., 127

N.J. 500, 513 (1992) (citing Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1988)).

      We turn next to the circumstances of the infraction. There was no direct

evidence that Sutton was fighting. Rather, the case against him is entirely

circumstantial. A corrections officer during a routine hand-and-body check

discovered scratches on Sutton's chest and bruises on his face. Sutton claimed

the injuries occurred while playing basketball. The officer also learned that

another inmate had facial lacerations and a swollen eye. That inmate claimed

he had fallen in the shower. Both inmates were charged with fighting based on

their coincidental injuries and DOC's assessment that the explanations for their

injuries were implausible.




                                                                         A-0813-18T3
                                       4
      Although the evidence DOC relied on is only circumstantial and far from

overwhelming, given the deferential standard of review, we might have been

prepared to accept the hearing officer's conclusions of fact, especially if the

hearing officer had documented his credibility assessment. The deference we

owe to an agency's factfinding prerogative, however, presupposes both sides

have an opportunity to present their case before the hearing officer. On the

limited record before us, we are not confident that Sutton had such opportunity.

The record conclusively shows that Sutton was not afforded the minimum

twenty-four hours' notice to prepare. Meanwhile, the record does not reliably

show that he was afforded his right to attend.

      In Avant v. Clifford, the New Jersey Supreme Court acknowledged that

prison disciplinary procedures are "not part of a criminal prosecution and thus

the full panoply of rights due a defendant in such a proceeding does not apply."

67 N.J. 496, 522 (1975) (quoting Morrisey v. Brewer, 408 U.S. 471, 480

(1972)). The Court nonetheless made clear:

            The inmate is permitted to be present throughout the
            hearing except during the Committee's deliberations
            and except where institutional security would be
            jeopardized. The reasons for excluding an inmate from
            the hearing must be "well documented" on the record.
            Otherwise, the hearing is conducted in the absence of
            the inmate only if he refuses to appear and cannot be


                                                                        A-0813-18T3
                                       5
            brought to the hearing without the use of force, or if he
            is on escape.

            [Id. at 528–29.]

      In this instance, we are not persuaded that Sutton was present at the

disciplinary hearing as the DOC contends. 1 We would expect that the record of

an inmate disciplinary hearing would clearly document whether the inmate had

attended and whether he testified. 2 Given the circumstantial nature of the

agency's proofs, Sutton's explanation for his injuries emerges as an especially

important circumstance for the hearing officer to consider.       If Sutton had



1
  DOC argues that Sutton relies on a "self-serving" Certification in Support of
Appeal to support his contention that the disciplinary hearing was held in
absentia and urges us to disregard that certification. The DOC also asserts that
the record shows that "Sutton provided a verbal statement at the hearing." We
have reviewed the document in the State's appendix to which the DOC refers. It
is true that the following statement is attributed to Sutton: "I was playing
basketball. That's why I got scratches on me." It is not clear, however, whether
that statement was made live at the disciplinary hearing or rather had been given
to the officer who detected Sutton's injuries and investigated the allegation of
mutual fighting.
       We add that the document indicates that the "[i]nmate [was] advised of
use immunity for criminal proceedings by the Disciplinary Hearing Officer,"
since that box is checked. However, the document does not make clear whether
Sutton was advised of use immunity at the hearing, before the hearing as part of
the notice process, or during the investigation.
2
   The record also does not suggest that Sutton knowingly waived the right to
attend, that he refused to appear, or that institutional security would have been
jeopardized by his attendance.
                                                                         A-0813-18T3
                                       6
testified at the hearing, we would expect the hearing officer to have made

explicit credibility findings based on Sutton's demeanor as a witness. So far as

we can tell, however, the hearing officer made no such findings, which is

consistent with Sutton's claim that he was not present at the hearing.

      What is clear is that Sutton was not accorded a full twenty-four hours'

notice of the disciplinary hearing—a circumstance the State does not dispute.

N.J.A.C. 10A:4-9.2.     It appears that in this instance, the hearing occurred

twenty-two hours after notice was given. While a two-hour discrepancy may

not seem particularly important in terms of safeguarding an inmate's ability to

adequately prepare for a hearing, this procedural violation takes on greater

significance when viewed in the context of petitioner's contention that the

hearing was held in absentia.

      DOC argues that Sutton did not object to the short notice. We note in this

regard that question eight of the adjudication form provides a checkoff box to

record a waiver and states: "if inmate waives [twenty-four] hours['] notice,

obtain inmate's signature." The box indicating waiver was not checked, and the

space for the inmate's signature was left blank. We deem this feature on the

form to be an important safeguard of the right to adequate notice. The failure to

fill it out in a case where it is not disputed that the inmate was afforded less than


                                                                             A-0813-18T3
                                         7
twenty-four hours' notice indicates Sutton did not waive that specific right. It

also supports his claim that he was not present to do so at the time the form was

filled out at the hearing.

      As we have noted, the DOC urges us to disregard Sutton's procedural

claims because he raises them for the first time on this appeal. It is well -settled

that we need not consider an issue raised for the first time on appeal, provided

there was an opportunity to present the issue, unless it goes to the jurisdiction

of the trial court or concerns matters of substantial public interest. State v.

Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins., 62 N.J.

229, 234 (1973)). Because we deem the right to notice of a hearing and the

associated right to attend that hearing to be important procedural safeguards of

the integrity of the inmate disciplinary process, we choose to consider Sutton's

claims, applying the plain-error standard of review. R. 2:10-2.

      In sum, we are constrained to conclude that procedural irregularities in

this case were "clearly capable of producing an unjust result." Ibid. We

therefore reverse petitioner's conviction for fighting and remand to the DOC to

conduct a new disciplinary hearing, affording Sutton proper notice and

opportunity to attend and participate. In light of this ruling, we need not address

Sutton's claim that his substitute counsel was ineffective at the hearing.


                                                                             A-0813-18T3
                                         8
Reverse and remand. We do not retain jurisdiction.




                                                     A-0813-18T3
                                9
