September 30, 2009
DARRELL REID, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 23, 2009
Before Judges Axelrad and Espinosa.
Appellant, Darrell Reid, is incarcerated at New Jersey State Prison in Trenton, serving a fifteen-year sentence for two counts of aggravated assault, four counts of weapons offenses, and one count each of robbery, conspiracy to commit robbery, burglary, resisting arrest and arson. He appeals from a December 23, 2008 decision of the Department of Corrections, finding him guilty of disciplinary infraction *.004, fighting with another person, as delineated in N.J.A.C. 10A:4-4.1. The hearing officer imposed ten days detention, with credit for time served, 180 days administrative segregation, and 180 days loss of commutation credit. Following an administrative appeal, the Assistant Superintendent upheld the decision of the hearing officer. Appellant then filed an appeal of the agency's decision.
On November 3, 2008, the Department of Corrections filed a motion for temporary remand, which we granted by order of December 4, 2008. On December 18, 2008, the hearing officer convened and completed the re-adjudication hearing. After hearing testimony, reviewing all the evidence, and considering appellant's arguments, the hearing officer found appellant guilty of disciplinary infraction *.004, and imposed a sanction of ten days detention, with credit for time served, ninety days administrative segregation, and referred him to mental health counseling. Following an administrative appeal, the Assistant Superintendent upheld the decision of the hearing officer.
On appeal, appellant argues his claim of self-defense was improperly rejected by the hearing officer; therefore, the decision was arbitrary and capricious and at odds with our decision in DeCamp v. New Jersey Department of Corrections, 386 N.J. Super. 631 (App. Div. 2006), and in violation of State due process and fairness guarantees. We reject appellant's argument and affirm.
Appellant was returning from a window visit to his assigned cell in the administrative segregation unit and the tier appeared to be clear of other inmates.*fn1 He was attacked by inmate Tavares, who was apparently hiding, and the two inmates began exchanging punches. The fight was witnessed by Senior Corrections Officer Underwood. A Code "33" was called. Appellant sustained a cut to his lower inner lip, which was not bleeding and did not require sutures.
Our review of the Department of Corrections' decision is limited. Only when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).
In a disciplinary proceeding while imprisoned, an inmate is not entitled to the full panoply of rights as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33.
Here all of the requirements were met. Appellant was given twenty-four hours notice of the charge prior to the hearing on the merits and waived this notice requirement for the rehearing. He received hearings before an impartial tribunal, during which he was afforded counsel substitute, and he and his counsel substitute were provided the opportunity to make a statement. At the first hearing, appellant deferred his statement to his counsel substitute. His counsel substitute stated:
[Inmate Reid] was returning back from a visit and the other [inmate] attacked him. He [Reid] was defending himself. The [officer] allowed [inmate Tavares] on the tier with [Reid] and was wrong.
During his rehearing, appellant stated, "I am going home soon. This guy [Tavares] had a history of getting into fights." Appellant's counsel substitute stated, "Reid returned from a window visit and was attacked by Tavares. He had no other choice but had to defend himself. He should be [found] not guilty." Appellant was also offered and declined the opportunity to confront and cross-examine adverse witnesses.
Appellant's claim of self-defense was properly rejected by the hearing officer. We are mindful that "a victim of a physical attack will instinctively respond to protect his/her person from harm," and "[Department of Corrections'] regulations do not foreclose an inmate from raising the defense of self-defense in a prison disciplinary hearing." DeCamp, supra, 386 N.J. Super. at 639. Specifically, in considering a self-defense claim, the hearing officer should determine:
(1) who was the initial aggressor; (2) whether the force used to respond to the attack was reasonable; (3) whether the inmate claiming self-defense had a reasonable opportunity to avoid the confrontation by alerting prison authorities; and (4) any other factors that would make the use of force by the inmate claiming self-defense unreasonable, because it would interfere with or otherwise undermine the orderly administration of the prison.
[Id. at 640.]
Subsequent to the DeCamp decision, the Department of Corrections adopted a regulation, N.J.A.C. 10A:4-9.13(f), which recognized a claim of self-defense in the context of a prison disciplinary proceeding that involved the use of force among inmates. Such claim may be demonstrated only when the following conditions have been met:
1. The inmate was not the initial aggressor;
2. The inmate did not provoke the attacker;
3. The use of force was not by mutual agreement;
4. The use of force was used to defend against personal harm, not to defend property or honor;
5. The inmate had no reasonable opportunity or alternative to avoid the use of force, such as, by retreat or alerting correctional facility staff; and
6.  the force used by the inmate to respond to the attacker was reasonably necessary for self-defense and did not exceed the amount of force used against the inmate. [Ibid.]
In response to appellant's claim at the rehearing that he was defending himself during the altercation, Hearing Officer McGovern prepared a memorandum in which he addressed the aforementioned factors, finding: (1) Tavares was the initial aggressor; (2) appellant's initial force in response was appropriate but the reports described the interaction as a fight, i.e., repeated blows by both parties, and thus appellant made no effort to alert the officers or retreat or back off from the aggressor; (3) appellant had a reasonable opportunity to minimize or avoid the confrontation by alerting custody staff in the area but chose to respond by the aggressive action of closed fist punches; and (4) appellant fought with Tavares. The hearing officer found that Tavares was the aggressor but did not sense that appellant was solely defending himself as he had ample opportunity to push the other inmate away, particularly when staff were within visible proximity. Accordingly, the hearing officer rejected appellant's self-defense claim and found him guilty of the disciplinary infraction of fighting with another person.
Appellant disagrees with the hearing officer's conclusion, explaining he had only defended himself and had not fought back. He claimed if he had waited for the intervention of the officers, who did not make certain the tier was unoccupied and had placed him in jeopardy, he would have been hurt more seriously. We are satisfied the hearing officer considered the appropriate factors in evaluating appellant's claim of self-defense and there is substantial, credible evidence in the record to support the agency's decision that appellant's claim was without merit.