On appeal from a Final Agency Decision of the New Jersey Department Of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges Payne and Messano.
Appellant, Kesan Taylor, appeals from a final determination by the Department of Corrections affirming the imposition of disciplinary sanctions for committing the prohibited acts of *.004, fighting, *.306 engaging in conduct that disrupts the orderly running of the correctional facility, and *.003, committing an assault with a weapon. See N.J.A.C. 10A:4-4.1(a). Sanctions were imposed in connection with the *.004 charge (fighting) of 15 days detention with credit for time served, 365 days of administrative segregation and 365 days of loss of commutation time. Consecutive sanctions were imposed on the *.003 charge (assault with a weapon) of 15 days detention, 365 days of administrative segregation, 365 days of loss of commutation time and 180 days of loss of recreational privileges. In connection with the *.306 charge (conduct that disrupts), consecutive sanctions were imposed of 365 days of administrative segregation and 365 days of loss of commutation time.
On appeal, defendant makes the following argument:
THE HEARING OFFICER FAILED TO CONSIDER MITIGATING FACTORS THAT WARRANTED MERGER OR CONCURRENCY OF THE SEVERE AND DISPROPORTIONATE SANCTIONS IMPOSED.
The record discloses that on May 7, 2009, at the conclusion of a recreation period at the East Jersey State Prison, Sergeant R. Service observed abrasions on the face of inmate Mark Pritchett as he left the recreation yard. Suspecting that the injuries resulted from a fight, Service ordered other prison officials to inspect the remaining inmates as they left the yard for injuries. To facilitate the inspection, only eight inmates were permitted to leave the yard at one time. During the course of the inspections, Service noticed that Taylor was shivering and that he appeared to have abrasions and a swollen nose.
Upon completion of the inmate movement, Service viewed the videotape that had been taken of the yard. The videotape disclosed that a verbal altercation had been instigated by inmate Pritchett, who walked around a picnic table to approach Taylor. Punches were then exchanged, and the two wrestled on the ground until they were separated.
Thereafter, Pritchett sat down again at a table while Taylor walked toward the handball courts, where he was seen to be trying to locate an object on the ground. Shortly thereafter, Taylor approached Pritchett holding what appeared to be a weapon in his hand. Pritchett backed up, attempted to defend himself, and then ran toward the track, chased by Taylor. After Pritchett fell to the ground, Taylor sat on top of him, moving his hand in a stabbing fashion. After a brief struggle, the fight ended.
A subsequent search of the yard did not reveal a weapon. However, bloody clothes were found, discarded, in a garbage can, and blood was found on the ground by the yard fence near the tables. A search of Taylor's cell disclosed a six and one-half inch shank made out of sharpened fiberglass.
Following discovery of the injuries, Pritchett was escorted to the medical department, questioned, and later referred to Saint Francis Medical Center for treatment. Taylor was taken to a conference room and questioned. Taylor was then strip frisked, checked for additional injuries, handcuffed, escorted to the medical department and referred to Rahway General Hospital for further treatment of his injuries.
Both inmates sustained significant lacerations and abrasions to their faces and bodies. Pritchett had what appeared to be puncture wounds. Taylor sustained a bite to the back of his neck, allegedly inflicted by Pritchett in an effort to defend himself from the second attack.
Charges were served on both inmates, and the investigating officer referred the matter to courtline. Although a hearing was initially scheduled for May 11, 2009, it was postponed to permit the hearing officer to assess Pritchett's involvement in the incident. A hearing took place on May 13, 2009, at which time Taylor was represented by counsel substitute. Both claimed that Taylor did not have a weapon, but the hearing officer found the evidence suggested otherwise. Self-defense was also claimed. In that regard, the hearing officer stated that support for that claim "was evident from view[ing the] video initially." However, it did not explain "Taylor leaving area, retrieval of shank, return to initial fight area and his aggressive and ...