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Justin Faone v. New Jersey Department of Corrections

May 21, 2012

JUSTIN FAONE, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2012

Before Judges Baxter and Carchman.

This is an appeal from a July 19, 2011 final agency decision of the Department of Corrections (DOC) imposing disciplinary sanctions upon New Jersey State Prison inmate Justin Faone pursuant to N.J.A.C. 10A:4-4.1. The hearing officer found Faone guilty of prohibited act *.002, assaulting any person. We affirm.

I.

The charges in question were based on the report of Senior Corrections Officer (SCO) R. Gilhooley,*fn1 who was standing behind a desk when Faone reached over and snatched the shower list off a clipboard on the desk. Faone then proceeded into the bathroom and threw the shower list in the toilet. When Gilhooley ordered Faone to return to the desk area, Faone approached Gilhooley "in an aggressive manner" and punched Gilhooley in the chest with a "closed fist." Gilhooley activated the emergency button, at which time Faone delivered a second closed fist punch, this time to Gilhooley's face. Gilhooley attempted to restrain Faone, but was unsuccessful, and the two rolled down a nearby flight of stairs. Faone ignored Gilhooley's repeated orders to cease resisting, and continued to strike Gilhooley in the face and torso, until another officer, SCO Myers, arrived at the scene and helped Gilhooley restrain and handcuff Faone.

Later that day, Lieutenant Nywening questioned Faone about the incident. Faone admitted assaulting Gilhooley. He stated, "I threw away the shower list and Gilhooley approached me about it and I hit him, then we fell down the stairs." When asked why he assaulted Gilhooley, Faone responded "I don't know. I just used bad judgment, I guess."

Faone was examined by medical staff for a laceration to his left eyebrow and other superficial abrasions. Faone admitted to the nurse that he "tried to hit the c/o [corrections officer], the c/o [then called a] code," and in the process "he fell down the steps." SCO Gilhooley was treated by the nursing staff at the prison for pain in his right hand and left pinky caused by the altercation with Faone.

On June 30, 2011, an associate administrator denied Faone's request for a polygraph examination, reasoning "[t]here is adequate information, . . . includ[ing] testimony and medical evidence, . . . for the hearing officer to determine credibility in this case [without a polygraph examination]."

After six adjournments to permit Faone and his counsel-substitute to seek confrontation of Gilhooley and Myers, present confrontation questions and request a polygraph examination of Faone, the hearing began on July 6, 2011 and concluded eight days later on July 14, 2011.*fn2 After the confrontation with SCO Myers was completed on July 14, 2011, the hearing was once again postponed to afford Faone and his counsel-substitute the opportunity to provide a written summation, which they submitted the next day.

On July 15, 2011, hearing officer R. Makarski found Faone guilty based upon the eyewitness accounts of both SCO Gilhooley and SCO Myers, as well as Faone's June 15, 2011 statement to Lieutenant Nywening, in which Faone admitted assaulting SCO Gilhooley. Makarski imposed sanctions of fifteen days detention, with credit for time served; 365 days administrative segregation; 270 days loss of commutation credit; thirty days loss of recreation privileges; and thirty days loss of access to the canteen.

Faone filed an administrative appeal. On July 19, 2011, Associate Administrator Sherry Jones modified the sanctions by rescinding the thirty days loss of canteen privileges and by suspending for sixty days the thirty days loss of recreation privileges. She upheld the remaining sanctions and affirmed the finding of guilt on the *.002 charge.

On appeal, Faone argues that the July 19, 2011 final agency decision should be reversed because: 1) the hearing officer's standard of review was insufficient; 2) the hearing officer's finding of guilt was biased and not supported by sufficient credible evidence in the record; 3) the hearing officer failed to follow applicable procedures in documenting the adjudication of the disciplinary ...


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