DESMOND WEST v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0603-05T50603-05T5

DESMOND WEST,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

_____________________________________________________________

 

Submitted September 19, 2006 - Decided October 4, 2006

Before Judges Kestin and Graves.

On appeal from a Final Agency Decision of

the New Jersey Department of Corrections.

Desmond West, appellant pro se.

Anne Milgram, Acting Attorney General,

attorney for respondent (Patrick DeAlmeida,

Assistant Attorney General, of counsel;

Kimberly A. Sked, Deputy Attorney General,

on the brief).

PER CURIAM

Desmond West, a state prison inmate, appeals from a final administrative decision of the Department of Corrections (DOC). Following a hearing, West was found to have made threats toward the children of two members of the New Jersey State Parole Board (the Board) in violation of N.J.A.C. 10A:4-4.1(a)*.005 (threatening another person with bodily harm or with any offense against his or her person). For each of the infractions, the hearing officer recommended that West receive fifteen days of detention, 180 days loss of commutation credit, and referral to the prison's classification committee for consideration of an anger management program, with all sanctions to run concurrent. West filed an administrative appeal, and the DOC affirmed the hearing officer's determinations.

In this appeal, West argues:

THE DEPARTMENT OF CORRECTIONS DID NOT RELY ON SUBSTANTIAL EVIDENCE WHEN APPELLANT WEST WAS FOUND GUILTY OF DISCIPLINARY INFRACTION *.005 THREATENING ANOTHER PERSON, THEREFORE, THE FINDING OF GUILTY MUST BE REVERSED AND REMANDED.

After reviewing the record and the applicable law, we conclude that West's argument is without sufficient merit to warrant extended discussion, and we affirm. See R. 2:11-3(e)(1)(E).

"The determination of whether a remark constitutes a threat is made on the basis of an objective analysis of whether the remark conveys a basis for fear." Jacobs v. Stephens, 139 N.J. 212, 222 (1995). The hearing officer reviewed the audiotape of the Board hearing of September 2, 2005, and quoted for the record the abusive comments West had made to the Board members after he was told he was not going to be granted parole at that time. And when West was served with the charges, he made the following statement to Sergeant Watson: "I told them [the Parole Board members] I will sell drugs to their kids when I get on the street. I never threatened to touch nobody. I did it because they keep referring to my drug charges." The hearing officer also took into account statements from two witnesses who heard West's threats toward the Parole Board members' children.

 
The scope of our review is limited. "Ordinarily, an appellate court will reverse the decision of [an] 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); accord Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). "We 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). Our review of the record confirms there is substantial credible evidence to support the determination of the DOC that West threatened other people with harm.

Affirmed.

We note that records maintained by the Department of Corrections refer to "Demond West," and the notice of appeal refers to both "Demond West" and Desmond West."

(continued)

(continued)

3

A-0603-05T5

 

October 4, 2006