                                NOT FOR PUBLICATION WITHOUT THE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


                                                                          A-1743-17T4
                                        2
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
                                        3
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).]



                                                                  A-1743-17T4
                                 4
            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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                                       5
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


                                                                         A-1743-17T4
                                       6
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


                                                                          A-1743-17T4
                                        7
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-


                                                                            A-1743-17T4
                                         8
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.
                                                                        A-1743-17T4
                                       9
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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