                                NOT FOR PUBLICATION WITHOUT THE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-1194-18T2

JAMES ROBERTS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                   Submitted January 16, 2020 – Decided February 4, 2020

                   Before Judges Nugent and Suter.

                   On appeal from the New Jersey Department of
                   Corrections.

                   James Roberts, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Donna Sue Arons, Assistant Attorney
                   General, of counsel; Stephanie Renee Dugger, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Appellant James Roberts is an inmate in New Jersey State Prison who is

serving an aggregate sentence of twenty-five years for robbery and carjacking.

He appeals an October 18, 2018 final administrative determination of the

Department of Corrections (DOC) finding him guilty of prohibited act *.005.

See N.J.A.C. 10A:4-4.1(a)(2)(ii). We affirm.

      The psychiatrist who was conducting a routine mental health contact with

appellant on September 14, 2018 reported to the shift commander that appellant

stated: "I'm gonna f--king kill that guy." When the psychiatrist asked who

appellant was referring to, he responded "Officer McKevitt." The psychiatrist

reported appellant "quickly retracted the statement" and explained to the doctor

"it was said out of frustration."

      Appellant was charged with prohibited act *.005, "threatening another

with bodily harm or with any offense against his or her person or his or her

property." N.J.A.C. 10A:4-4.1(a)(2)(ii). He pleaded not guilty and was granted

the assistance of counsel substitute.

      A disciplinary hearing was conducted. In appellant's statement submitted

to the hearing officer, he claimed "[a]ll I said was 'they're going to kill him (the

ofc).' One day he's gonna cross paths [with] someone who has nothing to lose.




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I'm not guilty." Appellant did not call witnesses or request to cross-examine

any adverse witnesses.

      On September 18, 2018, the hearing officer found appellant guilty of

prohibited act *.005. The hearing officer's decision relied on the staff report,

"noting [appellant's] words reasonably convey the threat of harm/fear/menace to

the ordinary hearer." The hearing officer added that appellant "must be held

responsible for the words he speaks, regardless if he made [the statement] out

of frustration or if he really meant it.       Given this environment, all such

[statements] must be taken seriously." Appellant was sanctioned to 120 days of

administrative segregation, 150 days' loss of commutation time and 20 days' loss

of recreation privileges.

      He filed an administrative appeal. Substitute counsel did not deny that a

statement was made to the psychiatrist but argued appellant "asserted an offer

of advi[c]e to an officer, . . . as a[] precaution . . . . Unfortunately, the advi[c]e

was received as a threat."

      On October 18, 2018, the Associate Administrator upheld the decision of

the hearing officer because it was "based on substantial evidence and the

sanction was proportionate in view of [his] prior disciplinary history. "

      On appeal, appellant raises one issue:


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                                          3
            [THE PSYCHIATRIST] FAILED TO GIVE VERBAL
            NOTICE OR ADVI[C]E [TO] THE DEFENDANT OF
            THE LIMITATIONS ON CONFIDENTIALITY
            BETWEEN THE DOCTOR AND THE PATIENT.

      In this appeal from agency action, our review is limited. Figueroa v. N.J.

Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). We ordinarily decline

to reverse the decision of an administrative agency unless it is "arbitrary,

capricious or unreasonable or it is not supported by substantial credible evidence

in the record as a whole." In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry

v. Rahway State Prison, 81 N.J. 571, 581 (1980)). A finding that an inmate

committed a disciplinary offense only has to be "supported by substantial

evidence," Avant v. Clifford, 67 N.J. 496, 530 (1975), which 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)); see also N.J.A.C. 10A:4-9.15(a). When such

evidence exists, a court may not substitute its own judgment for the agency's

even though the court may have reached a different result. See Figueroa, 414

N.J. Super. at 191 (citing Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1,

10 (2009)). When reviewing a final determination of the DOC in a prisoner

disciplinary matter, we consider whether there is substantial evidence the inmate

has committed the prohibited act and whether, in making its decision, the DOC

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                                        4
followed the regulations adopted to afford inmates procedural due process. See

McDonald v. Pinchak, 139 N.J. 188, 194-98 (1995).

      The regulations 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

right to 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.

      Appellant's due process rights under Avant were satisfied. 67 N.J. at 525-

33. He was given notice of the charges and a hearing before an impartial

tribunal, where he declined the opportunity to call or cross-examine witnesses.

He had the assistance of counsel substitute who submitted argument on his

behalf.

      There was substantial evidence in the record to support the agency's

decision that appellant was guilty of prohibited offense *.005 based on the

reports and evidence submitted at the hearing.          An inmate charged with

committing prohibited act *.005 is guilty if, "on the basis of an objective


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                                         5
analysis[,] . . . the remark conveys a basis for fear." Jacobs v. Stephens, 139

N.J. 212, 222-23 (1995) (providing that *.005 was proven where an inmate

stated to a corrections officer "'to get the f--k out of [my] face' during a 'heated'

discussion").

        Appellant did not deny making a statement to the psychiatrist about

Officer McKevitt but his version of the statement was that "[a]ll I said was

'they're going to kill him (the ofc).' One day he's gonna cross paths [with]

someone who has nothing to lose. I'm not guilty." This was an alleged warning

for the officer that others may want to harm him. He did not call any witnesses

as corroboration; he did not ask to cross-examine anyone from the institution or

the psychiatrist. In finding appellant guilty of the charges, the hearing officer

plainly credited the psychiatrist's version. The threat was to kill a specific

officer. Under any objective analysis, such a remark would convey a basis for

fear.

        For the first time on appeal, appellant contends due process was violated

because the institution did not comply with the substance or procedures under

N.J.A.C. 10A:16-4.4. The regulation provides:

              (a) Confidential relations between and among mental
              health practitioners and individuals or groups in the
              course of practice are privileged communications and
              not to be disclosed to any person.

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                                         6
            (b) The following exceptions to privileged
            communications are applicable only in situations which
            present a clear and imminent danger to the inmate or
            others:

            1. Where the inmate discloses planned action which
            involves a clear and substantial risk of imminent
            serious injury, disease or death to the inmate or other
            identifiable persons;

                    ....

            [N.J.A.C. 10A:16-4.4(a) to (b)(1).]

The regulation provides the procedures for disclosure. N.J.A.C. 10A:16-4.4(c)

to (f). Based on the nature of the disclosure, N.J.A.C. 10A:16-4.4(g) authorizes

the administrator to "institute such action as is deemed appropriate considering

the needs of the correctional facility and facts of the particular case." This can

include "[i]nitiating disciplinary charges against the inmate[.]"        N.J.A.C.

10A:16-4.4(g)(3).

      Appellant argues he was not provided with the required materials and the

psychiatrist did not follow the proper procedures in reporting his statement. He

contends that the psychiatrist improperly disclosed his statement because there

was not clear substantial risk of imminent serious injury.

      Appellant did not raise these issues at the hearing before the hearing

officer or agency. "Generally, an appellate court will not consider issues, even


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                                        7
constitutional ones, which were not raised below." State v. Galicia, 210 N.J.

364, 383 (2012). The record is inadequate to address the procedural issues

because of this omission.

      That said, however, the hearing officer considered that appellant made a

threat to kill a specific officer. The threat to kill would certainly qualify as a

"clear and substantial risk of imminent . . . death to . . . other identifiable

persons[.]" N.J.A.C. 10A:16-4.4(b)(1). We are mindful that the statement was

made within a prison and that appellant is serving a lengthy sentence for offenses

involving violence. That the psychiatrist acted quickly demonstrated the level

of credibility given to appellant's statement.

      We are satisfied there was substantial evidence in the record to support

the agency's decision based on the reports and evidence submitted at the hearing.

See N.J.A.C. 10A:4-9.15(a). The agency decision was not arbitrary, capricious

or unreasonable. We conclude that appellant's further arguments are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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