NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 24, 2011
Before Judges Lihotz and Baxter.
Appellant Donte Williams, a state prison inmate, appeals from a final disciplinary decision of the Department of Corrections (DOC). Appellant was found guilty of three acts of assault, *.002 (assaulting any person), and one count of fighting, *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. On appeal, appellant argues the findings of guilt were not supported by substantial evidence and the consecutive sanctions imposed were excessive in light of the fact that all charges stemmed from the same incident. We disagree and affirm.
In the afternoon of October 14, 2009, appellant and three other inmates became agitated and appellant engaged in a fistfight with Corrections Officer Mike Smith. Sergeant Spires saw appellant strike Officer Smith in the torso with closed fists and radioed a "Code #33," requiring all institutional activities to cease until the disruption was contained. Other inmates joined in the altercation and began striking and kicking the corrections officers. Sergeant Degner responded to the Code #33 and saw appellant and others kicking and punching corrections officers. Officer J. Babecki went to the aid of Officer Smith and was kicked in the "upper chest and shoulder area" by appellant when he tried to restrain him. Sergeant Degner reported he was kicked by appellant in the "right shin" as he attempted to restrain him with leg irons. Even after he was cuffed, appellant continued to resist. As Corrections Officer Woolson escorted him down a flight of stairs, appellant pulled away and fell down the remaining stairs. Appellant was taken to the clinic for treatment and placed in a cell.
Appellant was charged with assaulting three corrections officers and with conduct that disrupted the orderly running of the institution. He pled guilty to striking Officer Smith, asserting he was provoked, but pled not guilty to the remaining charges.
The hearing officer considered the corrections officers' incident reports, the medical records of their treatment and Williams' admission. Appellant was found guilty of all charges and sanctioned to an aggregate of thirty days detention, four years administrative segregation, four years loss of commutation time and 180 days loss of recreational time. On appeal, the Department affirmed the hearing officer's findings, conclusions and sanctions imposed. This appeal ensued.
The scope of our review of an agency decision is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Service, 39 N.J. 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). Indeed, the applicable departmental regulation requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a); see also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring substantial evidence to support inmate sanction).
Although our review is limited, "our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). "Our role is to engage in a 'careful and principled consideration of the agency record and findings.'" DeCamp v. Dep't of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (citing Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973))). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry, supra, 81 N.J. at 579-80).
Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956); see also In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961). "Where 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 DeVitis 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).
Appellant argues the hearing officer's findings of guilt for two of the three assaults were arbitrary and against the weight of the evidence, advancing a theory that Officer Bezek and Sergeant Degner were accidentally struck by other officers in their zeal to respond to the incident. Also, he maintains that if the sanctions are viewed in this light and because the charges arose from one incident, the imposition of consecutive sanctions was inappropriate.
The substantial evidence in the record supports the hearing officer's findings. Appellant offered no evidence to contradict Sergeant Degner's report that he first viewed appellant striking Officer Smith, responded by calling a Code #33 and attempted to subdue appellant and was kicked. Further, the report by Officer Bezek states appellant struck him in the chest and shoulders. Regular prison operations ceased while numerous officers responded to the Code #33 in an effort to subdue and restrain the inmates and prevent the altercation from spreading.
Each offense was independently supported by distinct facts, even though part of the same disruptive event. There were three separate victims who were struck by defendant at distinctly different times albeit during the altercation.
The Legislature has vested the DOC Commissioner with broad discretionary power to "[d]etermine all matters of policy and regulate the administration of [penal] institutions . . . ." N.J.S.A. 30:1B-6(g). ...