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Boone v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 2, 2008

ANTHONY BOONE, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2008

Before Judges Parker and Yannotti.

Petitioner Anthony Boone appeals from a final administrative decision by the New Jersey Department of Corrections (DOC) rendered on August 13, 2007, that found him guilty of committing a prohibited act, .254.

Petitioner is serving a life sentence for murder, aggravated assault, receiving stolen property, possession of a controlled dangerous substance (CDS) and three counts of unlawful possession of a weapon. On August 1, 2007, when petitioner was being transferred from New Jersey State Prison to Southern State, he told the corrections officer (CO) he would not go. He was charged with committing prohibited act .254, refusing to accept a program or housing assignment unit in violation of N.J.A.C. 10A:4-4.1(a).

Petitioner was provided with all of the appropriate notices and with counsel substitute. At the hearing, petitioner stated that he wanted to stay in New Jersey State Prison or be transferred to Northern or Eastern State. Counsel substitute argued that petitioner wanted to go north, not south. Petitioner was provided with the opportunity to confront witnesses but declined.

At the conclusion of the hearing, he was found guilty of the .254 charge and sanctioned ten days disciplinary detention with credit for time served, ninety days administrative segregation and sixty days loss of commutation time. The hearing officer also recommended that petitioner be transferred to Northern or Eastern State. On administrative appeal, the DOC affirmed and petitioner appealed.

In this appeal, petitioner argues:

POINT ONE IN VIEW OF THE CIRCUMSTANCES SURROUNDING THIS MATTER THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE VACATED AND DISMISSED, INASMUCH AS APPELLANT WAS DENIED A FAIR DISCIPLINARY HEARING PREJUDICIAL ENOUGH TO WARRANT REVERSAL, AND VIOLATIVE OF APPELLANT'S DUE PROCESS AND EQUAL PROTECTION RIGHTS AS GUARANTEED BY NEW JERSEY CONSTITUTION, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTIONS.

We have carefully considered petitioner's argument in light of the record and the applicable law. We find that his argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Defendant was provided with all of the rights to which he is entitled under Avant v. Clifford, 67 N.J. 496 (1975); N.J.S.A. 52:14B-4. He was provided with counsel substitute who presented his arguments and he declined the opportunity to examine witnesses or present additional witnesses on his own behalf. Petitioner's argument that he wanted to go north, rather than south, is simply insufficient to overcome the disciplinary charge.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . . '" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. The DOC's decision, here, was supported by substantial credible evidence.

Affirmed.

20081002

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