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Elmo Harvey v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 23, 2011

ELMO HARVEY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 16, 2011

Before Judges Cuff and Simonelli.

Appellant Elmo Harvey appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act *.002, assaulting any person, in violation of N.J.A.C. 10A:4-4.1. We affirm.

At all times relevant to this appeal, defendant was incarcerated at South Woods State Prison. He is currently incarcerated at Northern State Prison, where he is serving an eighteen year, fourteen day term of imprisonment with a nine-year period of parole ineligibility for armed robbery, robbery, possession of a weapon for an unlawful purpose, and conspiracy to commit robbery or carjacking.

At approximately 6:15 p.m. on March 14, 2010, appellant's cellmate, inmate Moise, told Senior Corrections Office Saunders that appellant had assaulted him during the "evening mess movement." Moise was bleeding from his nose and eyes, and the left side of his face was swollen. Moise told Sergeant Marcus that appellant had returned to the cell from evening mess and punched him several times in the face.

Appellant admitted to Sergeants Marcus and Ennais that he punched Moise several times in the face area because Moise threatened to break his ribs. Appellant also admitted that he attempted to clean up the blood on the floor of his cell with a rag and disposed of his bloody clothing in a trash can.

Appellant was charged with prohibited act *.004, fighting with another person. A hearing was held on March 16, 2010, before a Hearing Officer. At the hearing, appellant requested and received counsel substitute. He pled guilty, explaining that other inmates told him that Moise had threatened to break his ribs and he and Moise began to fight after he confronted Moise about the threat. Appellant waived 24-hour notice through his counsel substitute, who signed line eight of the adjudication report, acknowledging the waiver, and line sixteen, acknowledging that the information in lines one through fifteen accurately reflected what took place at the hearing.

Based on the evidence, Morales modified the charge from *.004 to *.002, assaulting any person. In reaching this decision, she relied, in part, on medical reports, which confirmed that Moise had two swollen eyes, a swollen left cheek, a small cut above the posterior of his left eye, and multiple facial abrasions, whereas appellant only had abrasions on his knuckle, a slightly swollen lower lip, and several tears in the lower lip mid-line. Morales imposed sanctions of 15 days of detention, with credit for time served; 200 days of loss of commutation credit; and 200 days of administrative segregation.

On March 18, 2010, appellant administratively appealed, arguing he was deprived of his due process right to 24-hour notice of the modified charge, in violation of N.J.A.C. 10A:4-9.16(a), did not waive his right to 24-hour notice, and Morales modified the charge after the hearing. On March 19, 2010, Associate Administrator Amadu Jalloh affirmed Morales's decision. This appeal followed. On appeal, appellant raises the same arguments he raised below.

We reverse an agency's decision only where it is arbitrary, capricious, or unsupported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 23 (App. Div. 2005).

A hearing officer shall amend a charge "[w]henever it becomes apparent at a disciplinary hearing that an incorrect prohibited act is cited in the disciplinary report but that the inmate may have committed another prohibited act[.]" N.J.A.C. 10A:4-9.16(a). "The inmate shall be given the option of a 24-hour postponement to prepare his or her defense against the new charge or have the new charge adjudicated at that time." Ibid.

An adjudication of guilt of the charge must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). "Substantial evidence" means "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). The term has also been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002).

The substantial evidence standard permits an agency to apply its expertise where the evidence supports more than one conclusion; that is, "[w]here there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).

We have considered the arguments advanced by appellant in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). There is substantial evidence that appellant waived the 24-hour notice at the hearing, and there is sufficient credible evidence in the record as a whole supporting the adjudication of guilt on disciplinary charge *.002. The DOC's decision affirming Morales's decision was, therefore, not arbitrary, capricious, or unreasonable.

Affirmed.

20110223

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