KEITH BOWMAN v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2231-04T52231-04T5

KEITH BOWMAN,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________

 

Submitted September 27, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from a Final Agency Decision

of the Department of Corrections,

91-3709.

Keith Bowman, appellant pro se.

Peter C. Harvey, Attorney General,

attorney for respondent (Patrick DeAlmeida,

Assistant Attorney General, of counsel;

Lisa A. Puglisi, Deputy Attorney General,

on the brief).

PER CURIAM

Plaintiff, currently confined at the New Jersey State Prison in Trenton on a thirty-year sentence after a conviction for murder and other offenses, appeals from a Department of Corrections decision to continue his placement in the Management Control Unit. We affirm.

Plaintiff does not suggest that his initial placement in the Management Control Unit was incorrect and both parties agree that plaintiff's right to be removed from the Management Control Unit and placed into the general prison population is controlled by N.J.A.C. 10A:5-2.10(f). That section provides for the release of an inmate from the Management Control Unit when the inmate "no longer poses a substantial threat: ... [t]o the safety of others; ... [o]f damage to or destruction of property; or ... [o]f interrupting the secure and/or orderly operation of a State correctional facility."

The Administrative Code provides for periodic reviews, see N.J.A.C. 10A:5-2.10(a), and establishes a burden shifting mechanism to determine if the inmate meets the criteria of N.J.A.C. 10A:5-2.10(f). See N.J.A.C. 10A:5-2.11. Under that mechanism, the inmate is obligated to make an initial showing that he has complied with four defined requirements for release. After the inmate has done so, the Department of Corrections, in order to maintain the placement, must "demonstrate by substantial evidence that the inmate continues to pose an identifiable threat: [t]o the safety of others; ... [o]f damage to or destruction of property; or ... [o]f interrupting the secure and/or orderly operation of a State correctional facility." N.J.A.C. 10A:5-2.11(c). Finally, that section provides that the evidence relating to the continuation of the inmate in the Management Control Unit may include "behavior and attitude adjustment and disciplinary history."

Defendant concedes that plaintiff has made the necessary initial showing but defends its decision that plaintiff should not be released from the Management Control Unit. That decision will not be disturbed if "the findings made could reasonably have been reached on sufficient credible evidence present in the record." Close v. Kordulak Bros. 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We are well satisfied that the agency's decision is supported by "substantial evidence." Said another way, there was evidence before the defendant that "a reasonable mind might accept as adequate to support ... [its] ... conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). Plaintiff's arguments to the contrary are without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(1)(D) & (E).

We add these brief comments. One of the factors considered by the Department in continuing plaintiff's placement was a 1996 incident involving the stabbing of another inmate. Plaintiff was found "not guilty" of a disciplinary infraction regarding that assault and claims that the Department may not rely upon it in making its placement decision. We disagree. The Department is charged with considering the inmate's attitude and behavior. Those factors may be evidenced by conduct that does not rise to the level necessary for a finding of "guilty" of charges arising from the incident. The Department, therefore, may consider the fact that plaintiff was "implicated" in the incident even though he was found "not guilty" of the charges that were ultimately brought against him.

Moreover, plaintiff's history of involvement with the Afriken National Ujama and his history of violence and disobedience while placed in the Management Control Unit (even though there had been no incidents in the immediate past) amply support the Department's determination to continue plaintiff's placement.

 
Affirmed.

(continued)

(continued)

4

A-2231-04T5

October 11, 2005