DENNIS O'BRIEN v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4235-04T34235-04T3

DENNIS O'BRIEN,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent-Respondent.

________________________________________________________________

 

Submitted February 16, 2006 - Decided March 3, 2006

Before Judges Parker and King.

On appeal from a Final Agency Decision of

the Department of Corrections

Robert N. Agre, attorney for appellant.

Zulima V. Farber, Attorney General of New

Jersey, attorney for respondent (Michael J.

Haas, Assistant Attorney General, of counsel;

Christopher C. Josephson, Deputy Attorney

General, on the brief).

PER CURIAM

Petitioner Dennis O'Brien appeals from a disciplinary adjudication by the Department of Corrections (DOC) on March 9, 2005. We affirm.

Petitioner is serving an aggregate term of eighteen years in South Woods State Prison. On March 6, 2005, Senior Corrections Officer J. Lynch told petitioner to close his cell door. Lynch reported that petitioner "clenched his fist at me and said 'fuck you bitch, I'll hurt you' and slammed his cell door." He was charged with threatening another with bodily harm in violation of N.J.A.C. 10A:4-4.1(a)*.005.

After the usual notices, a hearing was held during which Lynch did not testify. Petitioner testified, however, and claimed that Lynch "yelled" at him to shut his cell door after he had spilled milk on the floor while carrying his breakfast tray. He admitted that he was upset, that he used a profanity and "sarcastically questioned whether he should shut his cell door 'with my third arm?'" He denied making any threatening statements and his cell mate, Angelo Roman, corroborated petitioner's testimony.

After the hearing, petitioner was adjudicated in violation of *.005 and sanctioned to 180 days of administrative segregation, 180 days loss of commutation time and fifteen days lock-up/detention. Petitioner filed an administrative appeal and the DOC affirmed the hearing officer's determination.

In this appeal, petitioner argues:

POINT ONE

THE AGENCY DETERMINATION ADJUDICATING APPELLANT, DENNIS O'BRIEN, GUILTY OF VIOLATING N.J.A.C. 10A:4-4.1(a)*.005 SHOULD BE REVERSED BECAUSE THE MATTER WAS NOT THOROUGHLY INVESTIGATED, BECAUSE HIS DUE PROCESS RIGHTS WERE VIOLATED AND BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE FINDING

A. A THOROUGH INVESTIGATION OF THE INCIDENT GIVING RISE TO THE CHARGE AGAINST DENNIS O'BRIEN WAS CLEARLY LACKING IN THE CASE BEFORE THE COURT

B. DENNIS O'BRIEN WAS DENIED HIS RIGHTS TO DUE PROCESS AND A FAIR HEARING

1. DENNIS O'BRIEN WAS DEPRIVED OF EFFECTIVE AID IN THE PRESENTATION OF HIS DEFENSE

2. DENNIS O'BRIEN WAS DEPRIVED OF HIS RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESS AGAINST HIM

3. DENNIS O'BRIEN WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO PRESENT AVAILABLE EVIDENCE IN HIS DEFENSE OF THE CHARGE

C. THE HEARING OFFICER LACKED SUFFICIENT EVIDENCE UPON WHICH TO BASE A FINDING OF GUILT

The essence of petitioner's argument is that he was not given sufficient time to investigate the charges against him and that he was denied his confrontation right by Lynch's submission of written testimony, rather than appearing.

Our scope of review of administrative decisions is "severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n., 93 N.J. 384, 390 (1993)). We must accord a strong presumption of reasonableness to the agency's decision. Smith v. Ricci, 89 N.J. 514, 525 (1982); City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 201 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We do not conduct an independent assessment of the evidence presented at the agency's hearing. In re Taylor, 158 N.J. 644, 656 (1999). While we do not act simply as a rubber stamp of the agency's decision, such a decision can only be reversed when 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).

Applying these principles to the record before us, we are satisfied that the DOC's decision was neither arbitrary, capricious nor unreasonable. Moreover, we find that it is supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(D).

We have carefully considered petitioner's arguments in light of the applicable law, and we are satisfied that these arguments lack sufficient merit to warrant further discussion in a lengthy written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

4

A-4235-04T3

March 3, 2006