April 2, 2009
CARMELLO PATIOUNGA, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2009
Before Judges Lisa and Reisner.
Appellant, Carmello Patiounga, a New Jersey State prison inmate, appeals from a final decision of the Department of Corrections, entered on May 15, 2008, adjudicating him guilty of committing prohibited act *.004, fighting with another person, and prohibited act *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, see N.J.A.C. 10A:4-4.1(a), and imposing sanctions for each offense of fifteen days detention, 365 administrative segregation, 365 days loss of commutation time, and thirty days loss of recreation privileges, to be served consecutive to each other. Appellant argues that he was denied his due process rights by the manner in which the administrative proceedings were conducted and because the charges were not proven by substantial evidence. He further argues that because the infractions arose out of the same conduct, imposition of consecutive sanctions constitutes excessive and cruel and unusual punishment and violates double jeopardy principles. We reject these arguments and affirm.
On April 18, 2008, at about 5:37 p.m., a fight broke out in the inmate dining room. Several corrections officers were eyewitnesses and identified appellant as one of the participants. Videotape recordings from several angles were produced and, according to the corrections officers who witnessed the fight and officers from the housing unit, appellant was one of the combatants. Immediately following the incident, appellant was observed to have torn clothing, a further indication that he was involved in the fight. He was also observed by medical staff to have swelling about the left eye, providing additional evidence that he was one of the combatants. As a result of the fight, all institutional movements were halted, all inmates were removed from the dining room, and all programs and activities for the entire inmate population were canceled for the remainder of the evening.
Charges were served on appellant, and the matter was scheduled for courtline hearing. Appellant requested and was granted counsel substitute. Appellant requested confrontation of several corrections officers, but at the hearing waived the request except as to one, Corrections Officer Recruit Sebastian. Sebastian testified and responded to the confrontation questions submitted by appellant's counsel substitute. Appellant and counsel substitute requested and were allowed to view the video tapes. Appellant declined to testify at the hearing, but his counsel substitute submitted a written statement on his behalf. The statement expressed that the video exonerated appellant and showed that he was merely sitting down in the dining hall; no medical injuries resulted to appellant from a fight; and appellant denied having ripped clothing when he left the dining hall.
The hearing officer viewed the video tapes. However, his decision was based upon the totality of the evidence, including the reports of the various corrections officers setting forth their eyewitness accounts of the incident, the medical report and Sebastian's testimony. With respect to each charge, the hearing officer issued detailed written findings, describing the evidence upon which he based the findings, and found that the charges were supported by substantial evidence. He adjudicated appellant guilty on each offense and imposed the sanctions we have mentioned. Appellant filed an administrative appeal. On May 15, 2008, the assistant superintendent upheld the decision of the hearing officer in all respects. This appeal followed.
We will not interfere with an agency's decision unless it is arbitrary or capricious or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We have reviewed the record and we are satisfied that the reports and testimony relied upon by the hearing officer and the assistant superintendent provided the required "substantial" evidence to support the disciplinary violations against appellant. See McDonald v. Pinchak, 139 N.J. 188, 195 (1995); N.J.A.C. 10A:4-9.15(a); R. 2:11-3(e)(1)(D).
We are further satisfied from our review of the record that the disciplinary proceedings were conducted in accordance with all applicable due process requirements. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Appellant's argument that he was deprived of his due process rights lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Finally, we reject appellant's argument that imposition of consecutive sanctions constituted cruel and unusual punishment and violated double jeopardy principles. We first note that this is an administrative proceeding, not a criminal prosecution. Further, we decline to find that imposition of consecutive sanctions was arbitrary in the circumstances of this case. The mere act of fighting does not necessarily cause any further consequences, but the nature and circumstances of the fighting involved here caused substantial other consequences that adversely affected the entire institution. We therefore do not find unreasonable the determination to impose separate punishments.
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