On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Fisher and King.
This is a prisoner's appeal from a decision of the Department of Corrections (DOC) adjudicating him guilty of prohibited *.002, assault, in violation of N.J.A.C. 10A:4-4.1. The alleged assault occurred on June 28, 2007 at Bayside Prison where appellant asserts "I was assaulted 4 times, in 4 different location[s]" by members of the institution's correctional staff. The incident was witnessed by Senior Corrections Officers Ivanovs, Kita, Hickman, and Ciaurelli. The officers said they restrained Brown, who was kicking and fighting. Brown was handcuffed, taken to the medical unit, and then to a cell in the prison hospital.
The DOC asserts that the physical confrontation arose out of a search of appellant's cell which revealed contraband, a hotpot, in a locked footlocker. When the hotpot was seized the DOC's witnesses said that appellant struck Senior Corrections Officer Messier in the jaw. Brown and Messier suffered minor injuries.
Appellant was charged with possession of an unauthorized item, *.210. He does not appeal from an adverse adjudication on that charge.
At the hearing appellant and his counsel substitute made statements on his behalf. The hearing officer considered the statements of two inmate witnesses and appellant was offered but denied the opportunity to confront witnesses against him. After considering the record, the reports of five corrections officers and the prison nurse, the hearing officer found appellant guilty of the assault charge. A sanction of fifteen days detention, 365 days lost of commutation credit, and 365 days in administrative segregation was imposed. Appellant did not file an appeal with the prison administrator. Despite this failure to exhaust administrative remedies, we will entertain this appeal on the merits. (See Judge Stern's order of May 13, 2008 in M-4569-07.)
We are satisfied from this record that appellant received all due process and that the adjudication was supported by substantial credible evidence in the record.
Only where an agency's decision is arbitrary or capricious or unsupported by credible evidence in the record may this court reverse. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Unless we find that the agency's action was arbitrary, capricious or unreasonable, the agency's ruling should not be disturbed. In re Taylor, 158 N.J. 644, 657 (1999); Barone v. Dep't of Human Servs., Div. of Medi. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). On this record, we must affirm.
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