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Mortimer Hetsberger v. New Jersey Department of Corrections

April 19, 2011

MORTIMER HETSBERGER, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: April 6, 2011

Before Judges Axelrad and J. N. Harris.

Mortimer Hetsberger appeals from a final determination of the Department of Corrections (DOC), adjudicating him guilty of prohibited act *.002, assaulting any person, as delineated in N.J.A.C. 10A:4-4.1. The hearing officer imposed 15 days detention, 365 days administrative segregation, 365 days loss of commutation credit and 30 days loss of recreation privileges. Following an administrative appeal, an assistant superintendent of the DOC upheld the decision of the hearing officer, finding it based on substantial evidence and concluding no leniency should be afforded to appellant. Appellant then filed an appeal of the agency's decision.

On appeal, appellant argues his due process rights were violated because he was precluded from attending a hearing occurring on February 16, 2010, and was denied his request for a polygraph examination. Appellant also argues there was a lack of substantial evidence in the record to support the hearing officer's finding of guilt, and challenges the sanctions imposed as disproportionate to the offense. We reject appellant's arguments and affirm.

Appellant was accused by a fellow inmate of an assault occurring on January 31, 2010. The event allegedly occurred in the four-man cell inhabited by appellant, the victim, and two others who were purportedly asleep at the time. According to the reports, Senior Corrections Officer (SCO) Lemmon heard a commotion in the area of appellant's cell, and as he headed upstairs to investigate, he passed appellant running downstairs. In the cell, the corrections officer observed inmate Perry sitting on his bed "with blood on the left side of his face nearest his left eye." Perry reported that appellant hit him in the face. Sergeant Goslin arrived and noted that Perry "had a lump and a bleeding gash over his left eye," with "blood on his clothes and on the floor." Perry informed him as well that he had been struck in the head by appellant, his cellmate.

As three backup corrections officers walked up the stairs, they observed appellant heading upstairs towards his cell. Two of the officers noted in their reports that they observed Perry with a bleeding cut over his left eye. As Perry reported that his cellmates had been smoking marijuana, the cell was searched with negative results for contraband and the four men were urine tested, with negative results.

An investigation revealed that the other two cellmates apparently did not observe the incident. Inmate Wright stated only that he "rolled over" and, seeing that Perry was bleeding, left the room. Inmate Benthall was found by a responding officer in his bed, covered up with a blanket. He represented that both he and Wright were asleep when the incident occurred.

Both Perry and appellant were given medical examinations. Perry's examination confirmed the injuries to his left eye as observed by the officers, while appellant's examination revealed no injuries. Appellant was thus charged with a *.002 prohibited act.

Appellant also provided a statement during the investigation. He claimed SCO Lemmon had given him permission to use the bathroom, and when he returned, the officers had already reported to his cell. According to appellant, "[b]efore [he] went to the bathroom there was no incident." As evidence of his innocence, appellant noted he was searched for scars and blood on his body and clothing, and none were found.

Appellant presented confrontation questions to SCO Lemmon, including whether he gave appellant permission to use the bathroom. The corrections officer answered that question in the negative, responding in writing at the hearing on February 4, 2010 to all questions posed by appellant. Appellant also requested statements from two other corrections officers about whether any inmates had requested room reassignment due to problems with Perry, to which they responded in the negative. Appellant additionally requested his other two cellmates be called as witnesses; their statements were entered into evidence.

Perry also provided a statement, claiming that shortly before the incident appellant returned to their room and began arguing with him over the television volume. He also taunted Perry about being incarcerated at sixty-years of age. Perry told appellant to "not smoke marijuana if it made him act like he was acting." According to Perry, appellant continued to harass him and threatened to hit him, putting on his gloves and sneakers "indicating that he was going to do this and that to [him]." Perry further stated that appellant then went into the hall, returned to the room, and punched Perry in the eye and nose while Perry was "sitting on [his] bed trying to ignore him." In response to appellant's confrontation questions, SCO Lemmon noted that work gloves were found with appellant's property.

Appellant subsequently requested a polygraph examination. He asserted that Perry's statement to Sergeant Goslin that he observed appellant smoking marijuana in the room had proved incorrect based on the urine test and thus argued that Perry was "completely untrustworthy and was trying to frame [him]." Appellant also claimed the other inmates' and officers' statements confirmed he was not upstairs in the room when SCO Lemmon heard the loud noise. The administrator denied the request by memo of February 16, 2010, concluding as follows: the disciplinary report, confrontation package and supplemental documentation ...


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