NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2012
Before Judges Axelrad and Ostrer.
Charles Mitzenius appeals from two separate decisions of the Department of the Corrections (DOC), rendered April 8, 2009 and May 12, 2010, removing work and commutation credits because he failed to cooperate fully with sex offender treatment as required by N.J.S.A. 2C:47-8. We affirm.
Mitzenius, now seventy-four years old, is serving a twenty-four year sentence, with an eight-year parole ineligibility term, at the Adult Diagnostic and Treatment Center (ADTC). He was sentenced in May 1998 after he was convicted of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, endangering the welfare of a child and two counts of criminal sexual contact.
He claims he was assaulted on October 23, 2008 by a fellow-inmate at a group therapy session, and suffered serious injuries. He requested transfer to another group in November 2008, but his request apparently was denied. Thereafter, he inconsistently attended therapy sessions between December 1, 2008 and February 28, 2009, and the quality of his participation was adjudged to be poor. During the period between September 1, 2009 and February 28, 2010, he ceased attending therapy entirely.
As a result of his non-attendance at therapy, he lost commutation and work credits by decisions of the Classification Committee on April 8, 2009 and May 12, 2010. Mitzenius concedes that at the 2009 hearing he "stood mute." He claims he did so because his requests for a different therapist had been denied. He lost credits for the period from December 1, 2008 to February 28, 2009.
At the 2010 hearing, he reportedly said he was working with his attorney (he had filed a notice of a tort claim against DOC), and acknowledged that he understood the ramifications of not attending therapy. Mitzenius apparently did not present evidence or testimony to support his argument that his non-attendance was justified by his personal safety concerns. He lost credits for the period from September 1, 2009 to February 28, 2010.
After the 2010 classification decision, Mitzenius sought internal administrative review, and presented a formal brief on May 21, 2010 in which he asserted his safety concerns. However, on May 26, 2010, DOC informed Mitzenius there was no "process in place to appeal [the] Classification Committee's decisions." He was informed he could request a "Special Review with Classification by submitting an Inmate Request form."
Mitzenius filed his appeal on July 11, 2010. He argues the agency's decision removing his commutation and work credits was arbitrary and capricious. He argues he had attended therapy consistently before the October 2008 assault, and that his lack of attendance in 2009 and 2010 resulted from the agency's failure to assure his safety, and its failure to assign him to a different group and therapist.
His appeal from the 2009 decision is grossly out of time.
R. 2:4-1(b); R. 2:4-4(a). However, we choose to address his entire appeal on the merits. We exercise limited review of administrative decisions. We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We may not substitute our judgment for the agency's. Brady v. Dep't of Personnel, 149 N.J. 244, 264 (1997). Nor may we "substitute [our] own factfinding for that of the agency." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Ibid. Particularly with regard to DOC's responsibility to manage the "dangerous" and "volatile environment" of prisons, "the courts must afford appropriate deference and flexibility to administrators[.]" Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).
Judged by these standards, we are satisfied there is substantial credible evidence in the record to support the agency decision. We discern no basis for our intervention. There is no question an inmate's unexcused failure to attend therapy warrants the loss of commutation and work credits. N.J.S.A. 2C:47-8 (stating that sentence of an inmate confined to ADTC "shall not be reduced" by award of commutation and work credits "if the person failed to fully cooperate with all treatment offered to him during that time period"). Nor is there any question that Mitzenius failed to attend and failed to participate in sessions, as the agency determined.
Mitzenius argues his failure to attend therapy was excusable, and the agency's decision to remove his credits was arbitrary and capricious. We disagree. At his 2009 and 2010 hearings, Mitzenius did not present evidence to support his claims that his non-attendance was justified by legitimate concerns that appropriate measures to assure his safety in the future would be absent, or that the therapist in charge would not exercise appropriate control, nor provide appropriate treatment. Consequently, the record lacks a basis to conclude that the agency's group therapy assignment was arbitrary or capricious. The Classification Committee has broad discretion to determine assignment of inmates to "treatment programs appropriate to their needs." N.J.A.C. 10A:9-3.1(a)(1). We discern no grounds to disturb the Committee's decision.