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Berry v. Dep't of Corrections

October 17, 2007

QUAADIR BERRY, INMATE-APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a final determination of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2007

Before Judges Stern and A. A. Rodríguez.

Appellant Quaadir Berry challenges the final agency decision by the Department of Corrections (DOC), imposing disciplinary sanctions for committing prohibited acts: *.002, assaulting any person (two separate charges) and .210, possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On August 7, 2006, at approximately 2:20 a.m., Senior Corrections Officer Robinson, who was assigned to Unit "A3," saw inmate Khaiff McDaniels attack Dashawn Owens. Senior Corrections Officer Flunder ordered McDaniels and Owens to stop fighting, at which time appellant approached Flunder from behind and proceeded to swing his closed fist at the officer and inmate Owens. Appellant struck Flunder on the left side of the face. Appellant also pushed Owens and Flunder, which resulted in Flunder falling into a wall.

About forty minutes later, Senior Corrections Officer Roleson was retrieving appellant's property from his cell in Unit A3. Roleson looked under appellant's bed and discovered a razor blade taped to the bed. Appellant was issued two charges of committing prohibited acts *.002 and *.202, possession or introduction of a weapon, which was later modified to a .210 charge pursuant to N.J.A.C. 10A:4-9.16.

Hearing Officer Gary Sheppard conducted an adjudication hearing. He granted appellant's request for the assistance of a counsel substitute. Inmate Gray was assigned. Appellant plead "not guilty" to each of the charges and declined to confront witnesses against him. He did request a witness statement from inmate Francis Myers. Meyers gave the following statement:

Me and inmate Berry were having conversations about things on the street when he wanted to go to sleep. I asked to borrow his walkman and he allowed me to. He then went to sleep. I know this for a fact because he sleeps across from me. At the time of the incident, he was still sleeping.

This statement contradicted appellant's version at the hearing, where he testified that:

[Owens and I] was both throwing blows. I didn't attack him. He said something to me [and] we got up [and] started to fight. I was fighting [with] Owens. I didn't hit the officer.

I was fighting [with] Owens. Next thing I knew somebody hit me [and] I fell to the ground.

Counsel Substitute Gray argued on appellant's behalf, that "[Flunder] hit [appellant], he never hit the officer."

With respect to the razor blade charge, appellant testified, "I moved in there [three] weeks ago. The [razor blade] ...


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