THERRON CHAPPELL v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1330-05T21330-05T2

THERRON CHAPPELL,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________________________

 

Submitted May 31, 2006 - Decided August 16, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from a Final Agency Decision of the Department of Corrections.

Therron Chappell, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Inmate, Therron Chappell, appeals from a Final Administrative Agency Decision of the Department of Corrections (DOC) dated October 11, 2005. That decision upheld the October 5, 2005, determination by a disciplinary hearing officer that Chappell violated prison rule .051, which prohibits an inmate from engaging in sex acts with others. Chappell denied the charge.

The record reflects that a corrections officer charged that he observed a female visitor, Chappell's wife, place her left hand in Chappell's crotch area and begin to move her hand consistent with sexual masturbation. Chappell asserts that his wife just had her hand on his thigh and he had his hand on her side. Chappell contends that: (1) no sex act occurred; (2) the corrections officer could not have seen a sexual act since the officer was twenty-five feet from him and his wife; (3) the corrections officer's statement is contradictory; and (4) other inmates were engaged in sexual activity, but only he was charged. Chappell speculates this alleged disparate treatment was because he and his wife are not of the same race. There was, however, no evidence adduced to support that speculation.

The hearing officer accepted the testimony of the corrections officer. In his Adjudication of Disciplinary Charge, the hearing officer made the following observations:

In [exhibit] A-3, the officer makes it clear what he saw. The inmate's statement on 10/5/05 shows the inmate had no problems with this officer, there is no reason he would provide a false account. At the confrontation the officer appeared truthful and professional. While the officer says he did not see the inmate's penis, he reports the visitor had her hand inside his crotch area and this is not seen as a discrepancy.

The scope of our review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999); Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998); Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "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, supra, 81 N.J. at 579-80. The DOC concluded the hearing officer's decision was based upon substantial evidence. We have no reason to disagree. Moreover, we have reviewed the record and find that defendant received all of the process that he was due. McDonald v. Pinchak, 139 N.J. 188, 195 (1955). See also Avant v. Clifford, 67 N.J. 496, 528-32 (1975). The hearing officer, who had an opportunity to judge the credibility of the corrections officer, found him to be "truthful and professional." That being so, the decision could reasonably have been reached on evidence that is supported by the record. The decision is not arbitrary, capricious or unreasonable and, therefore, it is affirmed.

Affirmed.

 

(continued)

(continued)

3

A-1330-05T2

August 16, 2006