MARK SMITH v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2613-05T52613-05T5

MARK SMITH,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted September 12, 2006 - Decided September 22, 2006

Before Judges Skillman and Lisa.

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

Mark Smith, appellant pro se.

Anne Milgram, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Mark Smith, a State Prison inmate, appeals from a final decision of the Department of Corrections finding him guilty of disciplinary infraction *.005, threatening another with bodily harm or with any offense against his or her person or his or her property, in violation of N.J.A.C. 10A:4-4.1. Appellant argues on appeal:

THE DISCIPLINARY HEARING OFFICER DID NOT MEET THE STANDARD OF PROOF TO JUSTIFY ITS DECISION IN A FINDING OF GUILT THUS VIOLATING APPELLANT['S] CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW.

This argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D), (E). We affirm. We set forth a brief description of the factual and procedural events and comment briefly on appellant's argument.

On October 13, 2005, Corrections Officer T. Washington told appellant he could not leave his housing unit to obtain a special diet meal because he did not possess the required permit. Washington recorded in her report what happened next: "[Inmate] Smith stated to the above officer 'You come back with bullshit you lucky I'm locked up behind this gate.' Officer stated 'What do you mean by that.' [Inmate] Smith stated 'I'll f[---] you up.'" Other officers were called, and appellant was escorted to pre-hearing detention.

The disciplinary charges were filed. Appellant was provided counsel substitute. He initially exercised his right to confront and cross-examine Washington, but later withdrew it. Therefore, the evidence of Washington's version of the incident was presented by virtue of her written report.

Appellant denied threatening Washington, although he acknowledged that the two "did pass words" regarding a special diet permit. Two inmate witnesses gave statements, acknowledging that they heard Washington ask appellant for his diet card and that he did not have one. Both witnesses further stated they did not know what happened after that and did not hear anything else.

Relying upon and crediting Washington's statement in her report, the hearing officer found appellant guilty and imposed sanctions of fifteen days detention, ninety days administrative segregation and ninety days loss of commutation credit. Appellant filed an administrative appeal. On October 21, 2005, the Associate Superintendent upheld the guilty finding but modified the sanctions by suspending for sixty days the ninety-day loss of commutation credit, while upholding the fifteen days detention and ninety days administrative segregation. This appeal followed.

We reject appellant's argument that the final decision is unsupported by substantial evidence in the record. Our scope of review of a final agency decision is very limited. We will not disturb the decision unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). After review of the record we are satisfied the final decision is well supported by the evidence presented. Washington's version of the incident, as contained in her report, constitutes substantial evidence and was found credible by the hearing officer. Appellant's statement to Washington was clearly a threatening remark.

We reject defendant's argument that he was denied a fair hearing. He was accorded all of the due process protections to which he was entitled. See Avant v. Clifford, 67 N.J. 496, 522-33 (1975).

Affirmed.

 

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A-2613-05T5

 

September 22, 2006