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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...