On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2008
Before Judges C.L. Miniman and Baxter.
Carlos Guerrero appeals from an October 19, 2007 final agency decision by the Department of Corrections (DOC) that found him guilty of disciplinary infraction *.306, conduct which disrupts or interferes with the orderly running of a correctional institution. He was also charged with a violation of *.002, assaulting any person. The charges followed a melee in the recreation yard at Northern State Prison on October 4, 2007. Eleven inmates, including Guerrero, were identified as being involved in fights among groups of three or four inmates on the handball court.
The *.002 assault offense was amended to an *.004 offense, fighting with another person. The hearing on the *.004 offense occurred first. The hearing was initially adjourned to permit the hearing officer to obtain the records of the medical examination of Guerrero immediately after the alleged fight. The medical record states that Guerrero was "examined with no physical injury [found]. . . ." The hearing officer also viewed a videotape from a camera that surveilled the Fox Yard. He commented, "The contents of the videotape was poor quality. . . .
The specifics of the incident described was not clear on this document." Finally, the hearing officer considered a report by Officer M. Raimeto,*fn1 who wrote, "[T]his writer witnessed [names of ten inmates] and I/M Guerrero striking each other with closed fist and leg kick in Fox Yard. . . ."
The hearing officer found Guerrero not guilty of the *.004 fighting offense. He explained his October 9, 2007 decision by stating, "No medical documentation[,] and videotape does not support charge. Charge dismissed."
Two days later, the hearing on the *.306 charge took place before the same hearing officer who found Guerrero not guilty on the *.004 charge. The *.306 charge was expressly based upon Guerrero being engaged in a fight in the Fox recreation yard with ten other inmates. Specifically, the evidence presented included Raimeto's report, the videotape and Guerrero's medical records, as well as reports by two officers, V. Johnson and D. Centi, which were not considered at the *.004 hearing. Johnson wrote that he saw several "Hispanic and African-American inmates fighting . . . in three to four separate groups." Johnson did not list names of any of the participants. Centi, in contrast, listed the names of the inmates he "observed fighting in Fox Yard." Guerrero was one of them. After considering two other reports that referred to Guerrero fighting in the yard, the hearing officer adjudicated him guilty of the *.306 disruptive conduct charge. Guerrero's subsequent appeal to the Assistant Superintendent of the facility was unsuccessful.
On appeal, Guerrero argues that his conviction on the *.306 charge is not sustainable in light of the adjudication of not guilty on the fighting charge. DOC does not respond to that argument, merely contending that Guerrero received all the institutional process to which he was due under Avant v. Clifford, 67 N.J. 496, 525-30 (1975), and institutional rules. DOC maintains that Guerrero did not call any favorable witnesses or cross-examine adverse witnesses. The agency asserts that the evidence was sufficient to support the finding of guilt.
Our scope of review is a narrow one. We must affirm the agency's decision unless it is arbitrary, unreasonable, unsupported by credible evidence in the record or contrary to law. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
Here, we agree with Guerrero's contention that the *.306 charge was not sustainable in light of the not guilty finding on the *.004 fighting offense. The same alleged conduct, and the same evidence, led to Guerrero's acquittal on one and his conviction on the other. Specifically, the *.306 disruption charge was premised solely on DOC's contention that Guerrero participated in the fight, the very conduct of which he was acquitted when the hearing officer found him not guilty on the *.004 fighting offense. While we recognize that the hearing on the *.306 charge included some additional reports that were not considered during the *.004 hearing, that distinction is of no consequence because the additional reports were merely cumulative. The new reports made the same allegation --fighting -- that had been considered and rejected two days earlier. Under those circumstances, we agree with Guerrero that the guilty finding on the *.306 disruption charge is arbitrary and unreasonable.
Accordingly, we reverse the guilty finding on that charge and remand for correction of ...