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Tillery v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 5, 2008

MAJOR TILLERY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 23, 2008

Before Judges Cuff and Lihotz.

In this prison disciplinary appeal, appellant Major Tillery, along with Rashaun Barkley, who are both incarcerated at New Jersey State Prison's management control unit, appeals from an adjudication of guilt of prohibited act *.002, assaulting any person, in violation of N.J.A.C. 10A:4-4.1. The Hearing Officer (H.O.) assigned to the matter reviewed all evidence and entered an adjudication of guilt. The H.O. imposed a sanction of fifteen days detention with credit for time served, 180 days loss of commutation credit, 180 days administrative segregation and 120 days loss of recreation privileges. The recommendation was upheld after review by the Assistant Superintendent of the Department of Corrections (DOC). We affirm.

The scope of our review is limited. Williams v. Dep't of Corr., 330 N.J. Super. 197, 203 (App. Div. 2000). An adjudication of an infraction must be supported by substantial credible evidence. Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002); Williams, supra, 330 N.J. Super. at 203-04; see also N.J.A.C. 10A:4-9.15(a). A DOC decision on prisoner discipline matters will be disturbed only upon a finding that its ruling is arbitrary, capricious, unreasonable or unsupported by substantial credible evidence in the record. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956).

Here, Tillery admitted he and Barkley attacked Willie White while in the recreation yard. White, who had a history of mental illness, allegedly accused Tillery and Barkley of entering his cell. Tillery asserts he "had no choice but to subdue White" as a matter of "justifiable self defense."

On appeal, Tillery argues the record created by the H.O. was inaccurate because it was incomplete. Specifically, he suggests his plea was "not guilty with an explanation," but the H.O. recorded his plea as guilty; that he expressed his apprehension that White might act out due to his mental illness, justifying his preemptory actions; and the H.O. declined to investigate the extent of White's condition. Additionally, he maintains the loss of recreation privileges exceeded the mandate of N.J.A.C. 10A:4-5.1(a)2.

The hearing officer found that Tillery and Barkley engaged in an unprovoked assault on White. This finding is supported not only by the statement of Corrections Officer Wisher, who witnessed Tillery and Barkley corner White, and then begin "punching and stomping on him," but also by Tillery's own statements. Therefore, we conclude that the adjudication of guilt is supported by substantial evidence in the record and must be affirmed. DeCamp v. N.J. Dep't of Corrs., 386 N.J. Super. 631, 636 (App. Div. 2006).

Tillery's challenge to the extent of the sanction, particularly the loss of recreation privileges, is also rejected. A recommendation for loss of recreation privileges for up to 180 days is authorized, provided the offense is "specifically related to . . . a recreation privilege" and approved by the Institutional Classification Committee, which was obtained on April 18, 2007. N.J.A.C. 10A:4-5.1(g)8.

We have reviewed Tillery's remaining arguments and considered the submissions of both parties in light of the record and the applicable law. We conclude the remaining issues raised by Tillery are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E)

Affirmed.

20080505

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