April 14, 2010
EMOTION BLACKWELL, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 22, 2010
Before Judges Lisa and Alvarez.
Appellant, Emotion Blackwell, a New Jersey State Prison inmate, appeals from a final decision of the Department of Corrections entered on April 25, 2008 adjudicating him guilty of committing prohibited acts *.004, fighting with another person, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, in violation of N.J.A.C. 10A:4-4.1(a).
Appellant received sanctions for the *.004 violation of fifteen days detention, 365 days administrative segregation, and 365 days loss of commutation time. For the *.306 violation, he received sanctions of ten days detention, 180 days administrative segregation, and 180 days loss of commutation time. The final agency decision resulted from appellant's administrative appeal from the decision of the hearing officer. In the final decision, the assistant superintendent upheld the hearing officer's decision. This appeal followed.
Appellant argues that the decision should be reversed because (1) it was not supported by substantial credible evidence, and, in particular, the agency failed to consider his claim of self-defense, and (2) he was denied the effective assistance of counsel substitute. We reject these arguments and affirm.
A fight involving a number of inmates occurred on April 18, 2008 in the mess hall. The initial altercation occurred when an inmate attacked and began punching appellant's cousin. According to appellant, he intervened between the two combatants, and then was attacked by several associates of the inmate who had attacked his cousin, and he fought back against those individuals in self defense.
According to various incident reports, all of the inmates, including appellant, were willing participants in the altercations. Further, a summary of the videotapes of the incident described the initial attack on appellant's cousin, and stated that both of those individuals exchanged punches for several minutes, stopped and then resumed fighting, and both "appeared to be willing participants in the altercation." The summary of the videotapes further stated that during the initial altercation involving appellant's cousin, "several other inmates began to fight in several smaller groups." Those individuals, including appellant, "continued to exchange punches for several minutes. They also appeared to stop for a moment and begin to exchange punches again. The incident lasted approximately 8 minutes. All inmates appeared to be willing participants in the altercations that took place."
Appellant was provided with counsel substitute. At the hearing, counsel substitute advanced appellant's defense of self defense. Appellant declined to testify, to call witnesses, or to confront witnesses. Appellant does not deny that he engaged in fighting. His contention is that he was not a willing participant but was only defending himself.
As a result of the melee, all movements in the mess hall were disrupted, as were all institutional movements, and all programs and activities were canceled for the evening.
Based upon his review of the various incident reports and the videotape, the hearing officer made the following finding: "Inmate Blackwell argued that he was defending himself, however, the videotape clearly displays that all of the inmates involved were willing participants in the altercations."
We will not interfere with an agency's decision unless it is arbitrary, capricious, or unreasonable or unsupported by substantial 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 evidence relied upon by the hearing officer and the assistant superintendent provided the required "substantial" evidence to support the disciplinary violations against appellant. See R. 2:11-3(e)(1)(D); McDonald v. Pinchak, 139 N.J. 188, 195 (1995); N.J.A.C. 10A:4-9.15(a).
It is clear from the record that the hearing officer and assistant superintendent considered but rejected appellant's claim of self defense. Further, we reject appellant's unsupported contention that "the first five minutes of all four video tapes [A15-A18] mysteriously failed to capture the first five minutes of the incident." The summary of what was depicted on the videotapes is to the contrary, describing the first punch thrown against appellant's cousin.
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). Contrary to appellant's contention that his counsel substitute did not prepare adequately and did not present his defense of self defense, the record reveals that the defense was presented, counsel substitute reviewed all of the records considered by the hearing officer, and presented appellant's administrative appeal to the assistant superintendent. Appellant's additional contention that he was deprived of a twenty-four hour postponement to enable him and his counsel substitute to prepare for the hearing is also belied by the record. Such a postponement was granted.
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