November 27, 2007
KAREEM JONES #314934, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Determination of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2007
Before Judges Skillman and Yannotti.
Kareem Jones, an inmate at East Jersey State Prison, appeals from a final determination of the New Jersey Department of Corrections, which found that he committed prohibited act *.002, assault on any person, in violation of N.J.S.A. 10A:4-4.1(a). We affirm.
The facts that gave rise to this matter occurred on August 20, 2006. On that date, Senior Corrections Officers Bush and Sestito were escorting Jones from the yard back to the housing unit when, according to the officers, Jones spit at and kicked Officer Sestito. Officers Bush, Fisher, and Sestito filed reports concerning the incident, in which they stated that Jones had assaulted Officer Sestito.
Jones was charged with committing prohibited act *.002, and on August 21, 2006, Jones was served with a copy of the charge. Sergeant Andrews investigated the matter. Jones pled not guilty and, according to Andrew's report, said that he wanted the matter investigated by Internal Affairs. Jones did not ask that any witnesses be interviewed. Sergeant Andrews determined that the charge had merit and he referred the matter to "court line" for a hearing. Jones requested the assistance of counsel substitute.
The hearing was initially scheduled for August 24, 2006; however, the hearing officer postponed the matter because he required a statement from inmate Cunningham and because Jones requested a polygraph examination. On August 29, 2006, the associate administrator denied the polygraph request because Jones had not "supplied any specific issues with the disciplinary charges that [could not] be addressed at the time of the disciplinary hearing."
Cunningham provided a statement dated August 28, 2006, in which he stated that on the day of the incident, he was walking directly behind Jones as the inmates were returning from the yard. Cunningham wrote that he witnessed Officer Sestito "ram" Jones into the metal door while he was handcuffed. According to Cunningham, the officer "slammed" Jones on the floor and the officer claimed that Jones spit on him to justify the assault. Cunningham said that the officer had "a long standing feud with" Jones.
Inmate James Edwards also submitted a written statement. He stated that he was standing at the door to his cell next to the showers. He said that he witnessed two officers escorting Jones, and both officers slammed Jones "against the gate then to the ground and punched him in the face." According to Edwards, one of the officers asked Jones why he spit on him. Edwards said that he "saw the whole thing" and Jones never spit on the officer.
The hearing was rescheduled for September 8, 2006, but was again postponed because the hearing officer required a statement from Officer Camano. The officer provided his statement on September 11, 2006. Camano wrote that, when Jones was being escorted from the yard, he spit at and kicked Officer Sestito.
Jones provided a lengthy written statement concerning the incident. Jones wrote that he was in the prison yard and Officer Bush was staring at him in a "violent/aggressive manner." Jones asked Bush whether he had done something wrong, and Bush told Jones that he would look at him any "way he liked." Jones stated that later, Officers Bush and Camano came to escort him back into the prison. At the time, Inmate Cunningham was being escorted by Officers Williams and Sestito.
According to Jones, as they were waiting for the door to be opened, he and Bush exchanged "disrespectful remarks." Jones insisted that he did not make any statements or physical gestures threatening the officer, and did not try to lunge at Officer Bush or try to pull away from Officer Camano. Jones asserted that, after they entered the prison, Bush took him by the arm and slammed him into the left side of the metal door frame, "making it seem like [he] tried to run/pull away of [Officer] Camano."
The hearing officer found Jones guilty of the charge. On the adjudication form, the hearing officer wrote that Officer Sestito's statement was credible and was supported by the statements submitted by the other officers. The hearing officer noted that he had considered Jones's statement, as well as the statements furnished by Inmates Cunningham and Edwards. The hearing officer imposed the following sanctions: fifteen days of detention, 210 days of administrative segregation, and 210 days of lost commutation time.
Jones's counsel substitute filed an administrative appeal on his behalf, and in support of the appeal stated that Jones was asking for leniency. According to counsel substitute, Jones said that he never spit at or kicked the officer, but understood that "in situations like this, [it is] his word [against] the officer['s] word." Jones also believed that the only reason he was being charged "with this false accusation" was "because of the assault that took place behind the wall."
On September 18, 2006, the associate administrator denied the appeal, noting in his decision that the hearing officer's decision was based upon the reports of the officers. The administrator further found that the sanctions imposed were appropriate.
Jones appeals and raises the following arguments:
RESPONDENTS ARBITRARILY DENIED APPELLANT'S RIGHTS TO REQUESTED CONFRONTATION, CROSS EXAMINATION AND FALSIFIED THE RECORD THAT APPELLANT ALLEGEDLY DECLINED.
RESPONDENTS ARBITRARILY "RUBBER STAMPED" APPELLANT'S ADMINISTRATIVE APPEAL WITHOUT AN EXPRESSED REASON OF FOUND FACTS AS REQUIRED.
RESPONDENTS ARBITRARILY FAILED TO BE A[N] IMPARTIAL FACT FINDER AND FAILED TO MAKE A RECORD "WHY" REQUESTED DOCUMENTARY EVIDENCE [WAS NOT] PROVIDED.
When reviewing a determination of the Department of Corrections in a prisoner disciplinary matter, we consider whether there is substantial evidence to support the finding that the inmate committed the prohibited act and whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995). Applying this standard of review, we are convinced that the Department's decision in this matter must be affirmed.
In our view, there is substantial evidence in the record to support the Department's determination that Jones assaulted Officer Sestito. While Jones maintained that he did not commit the infraction, there was substantial evidence supporting the charge, specifically the statements by the officers involved in the incident.
The hearing officer noted in his report that he had considered the statements provided by Inmates Cunningham and Edwards regarding the incident. The hearing officer obviously refused to accept those statements. The hearing officer did not abuse his discretion in doing so because those statements differed in certain respects from Jones's version of the incident.
For example, neither Cunningham nor Edwards mentioned the exchange of "disrespectful remarks" between Jones and Bush that preceded the assault upon Sestito. Cunningham mentioned Jones's "long standing feud" with Sestito but Jones never referred to any such feud in his statement. Also, Edwards claimed to see the whole incident but he was not out in the yard when it apparently started.
We additionally reject Jones' contention that he was wrongfully denied confrontation/cross examination. The hearing officer's report states that Jones did not request confrontation/cross examination in this matter. Jones's counsel substitute signed the report, indicating that it accurately reflected what had occurred at the hearing. Jones now claims that his counsel substitute was "untrained" and signed the report without authorization.
We do not have a transcript of the hearing. Indeed, our Supreme Court has held that inmate disciplinary hearings need not be tape recorded. McDonald, supra, 139 N.J. at 201-02. Nevertheless, we see no reason to question the accuracy of the hearing officer's report. We are convinced that if Jones had been improperly denied confrontation/cross examination as he claims, he would have raised the point in his administrative appeal.
We also find no merit in Jones' assertion that the hearing officer arbitrarily denied his request for videotapes of the C-Unit and the yard. Jones asserts that the hearing officer failed to record his reasons for denying this request. Although Jones mentioned a videotape in his written statement, the hearing officer's report does not indicate that there was a specific request made for the tape.
As we pointed out previously, Jones's counsel substitute signed the report, thereby agreeing that it accurately reflected what had occurred at the hearing. Again, if Jones thought that the hearing officer had arbitrarily denied his request for the tapes, that issue would have been raised in the administrative appeal.
Finally, there is no merit in Jones' assertion that the administrator merely "rubber stamped" the hearing officer's decision. The associate administrator's decision indicates that he reviewed the matter and was satisfied that there was substantial evidence supporting the disciplinary charge. The associate administrator also found that the sanctions imposed were appropriate. This was not, as Jones claims, a mere "rubber stamping" of the hearing officer's determination.
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