VERNAL STEWART v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5534-04T15534-04T1

VERNAL STEWART,

Plaintiff-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Defendant-Respondent.

____________________________________________________________

 

Submitted August 29, 2006 - Decided September 8, 2006

Before Judges R. B. Coleman and Holston, Jr.

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

Vernal Stewart, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Vernal Stewart, appeals the April 18, 2005 disposition of disciplinary appeal of the Department of Corrections (DOC),upholding the April 14, 2005 decision of the hearing officer finding appellant guilty of committing prohibited act *.003, assaulting any person with a weapon in violation of N.J.A.C. 10A:4-4.1, and imposing a disciplinary sanction of fifteen days detention (with credit for time served), 365 days administrative segregation, and 365 days loss of commutation time. We affirm.

Appellant is an inmate currently incarcerated at East Jersey State Prison. He is serving a thirty-year sentence with a thirty-year mandatory minimum term for convictions of murder and other crimes.

On April 11, 2005, Senior Corrections Officer (SCO) Ellis was called to cell 207 in Alpha wing by inmate Sessoms, appellant's cellmate. Sessoms complained about appellant and told Ellis to "get this guy out of he[re]." Ellis asked Sessoms "what the problem was," to which Sessoms replied, "never-mind." Ellis left the cell, returned approximately one minute later, and observed appellant on the bottom bunk of cell 207 on the back of Sessoms attempting to choke Sessoms with a shoelace. Ellis ordered appellant to stop and appellant complied.

After the assault was stopped, both appellant and Sessoms were escorted to the nurses' station and examined for injuries by Nurse Jwenbic. Nurse Jwenbic, in her operations report center incident reports, noted no injuries on appellant but recorded a 0.5 cm. scratch above Sessoms' upper lip. Appellant was then placed in pre-hearing detention.

On April 12, 2005, appellant was served with a disciplinary report in which SCO Ellis reported he witnessed appellant "choking [Sessoms] with a shoe lace." This disciplinary report provided appellant with notice that he was being charged with committing disciplinary infraction *.003.

Immediately after the disciplinary report was served on appellant, Sergeant (Sgt.) R. Shabbicle conducted an investigation into the allegations. During that investigation, appellant did not enter a plea and reserved his statement for courtline, except to state that Sessoms was a "nut." Appellant identified no witnesses from whom he wished statements to be taken. The charge was referred for courtline adjudication, noting that appellant requested assistance from counsel substitute.

The courtline adjudication was held April 14, 2005, before Hearing Officer (H.O.) Shepperd. Appellant entered a plea of not guilty. H.O. Shepperd advised appellant of his use immunity rights. Paralegal Paul Regas was assigned as counsel substitute.

During the adjudication, the report of SCO Ellis detailing the assault, the seizure report of the contraband shoelace, and the medical examinations of appellant and Sessoms were admitted into evidence.

Appellant made the following statement:

[Sessoms] was going off on me. I complained about him threatening me. I didn't want to fight him, so I just tried to tie him up so [he] wouldn't fight me. It was self-defense. If I had wanted to strangle him I would have.

Counsel substitute stated on appellant's behalf that "there were no marks around Sessoms' neck. He had a scratched lip." Additionally, appellant relied on a written statement he submitted to H.O. Shepperd, in which appellant claimed that the situation between himself and Sessoms was ongoing and that Sessoms threatened to kill him in his sleep on the first day they were assigned to the same cell. Appellant further asserted that he did not want to fight Sessoms, but that Sessoms was picking a fight with him. When Sessoms "hooked off" in his face, appellant decided that instead of fighting back, he would "hog-tie" Sessoms with a shoelace until a corrections officer could come assist him.

In his written statement, appellant indicated that he told SCO Royker of the threats Sessoms had made to him, but that Royker thought he was just complaining to get out of the cell with Sessoms. Appellant also wrote that he would submit to a lie detector test. Appellant did not request any witnesses to be called on his behalf and did not request to confront or cross-examine any adverse witnesses.

When all the evidence had been presented and all arguments had been made, the H.O. showed the adjudication of disciplinary charge (adjudication) to counsel substitute who signed line 16, acknowledging the accuracy of what took place at the disciplinary hearing. After reviewing the evidence, the H.O. found appellant guilty of the charge based on the following findings of fact.

SCO Ellis reports inmate Stewart was choking inmate Sessoms with a shoe lace. Inmate pleads not guilty to the charge. He states his actions were in self-defense. He says the inmate "hooked off" on him and that he then tried to "hog tie" him with a shoelace. I cannot believe that Stewart would have time to remove the shoe lace from his shoe in the middle of a fight. The staff reports clearly show that Stewart had the shoe lace around Sessoms' neck. The staff reports are clear and are used to support the charge.

Accordingly, H.O. Shepperd recommended that appellant receive disciplinary sanctions of fifteen days detention (with credit for time served), 365 days administrative segregation, and 365 days loss of commutation time. The H.O. deemed these sanctions necessary to deter assaults with weapons, noting that appellant could have seriously injured or killed Sessoms. The H.O. wrote on the adjudication, "When inmate was leaving courtline, he stated he wanted SCO Royker to appear at courtline. Inmate was told the hearing had been completed."

On April 18, 2005, the DOC received an administrative appeal submitted on appellant's behalf by Regas. The bases for the appeal were that the H.O. misinterpreted the facts and a plea for leniency. Specifically, appellant argued that he acted in self-defense on the day in question in response to an alleged on-going problem with Sessoms and that no marks were seen around Sessoms' neck to support the allegation that appellant was strangling him.

On April 18, 2005, after reviewing the administrative record, Assistant Superintendent Peter Hilburn denied appellant's appeal and upheld the H.O.'s decision, finding that "[t]he decision of the hearing officer was based upon substantial evidence." This appeal followed.

Appellant presents the following arguments for our consideration:

POINT I

THE DECISION OF THE HEARING OFFICER VIOLATES DUE PROCESS AND SHOULD BE VACATED.

(A) THE DECISION OF THE HEARING OFFICER ON THE CHARGE SHOULD BE VACATED BECAUSE THE DECISION WAS NOT BASED UPON SUBSTANTIAL EVIDENCE.

(B) THE SANCTION IMPOSED IS EXCESSIVE.

Appellant contends that because the guilty finding was not based upon substantial evidence and the sanction imposed was excessive that he was denied due process. He asserts that the sanction should be modified by this court. Appellant argues that to sustain an adjudication of guilt, there must be substantial credible evidence to support a finding that the inmate has committed the charged prohibited act and that the evidence surrounding the *.003 charge here is simply non-existent.

Appellant further claims that in order to find him guilty of assault with a weapon, prison authorities would have to present evidence substantiating that he was actually strangling inmate Sessoms with the shoelace. Appellant contends that if he had been strangling Sessoms, the markings from the strangulation would have appeared on Sessoms' neck. However, the medical staff reported only a mark above Sessoms' lip. Thus, the observation of the reporting officer is not supported by the medical record.

Appellant claims he attempted to advise the administration of the mental condition of Sessoms by personally complaining to custody personnel and that they were deliberately indifferent and failed to address Sessoms' special needs, thereby leaving appellant in a dangerous predicament.

Appellant argues that there was no independent evidence to support the charge against him because the allegation submitted by SCO Ellis is diametrically opposed to his own statement. Appellant contends that DOC investigators failed to obtain a statement from Sessoms. Therefore, appellant argues, the findings were not based on substantial evidence that he actually strangled Sessoms with a shoelace, as reported by SCO Ellis.

An appellate court ordinarily "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); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005).

Although appellant argues that the investigator failed to obtain a statement from inmate Sessoms, the missing statement is not a result of a DOC failure. If appellant had requested a statement from Sessoms, or any other inmate, one would have been taken in compliance with N.J.A.C. 10A:4-9.13. Since appellant did not indicate during the investigation or at the adjudication that he requested a statement from any witness, including inmate Sessoms, none was taken. Therefore, we find no due process violation in the failure of the investigation to obtain Sessoms' statement. Appellant was offered the right to confront and cross-examine adverse witnesses, but he and counsel substitute declined. Although appellant attempted after the hearing was concluded to request confrontation of SCO Royker, this request was properly denied because the hearing had concluded and the H.O.'s adjudication had been made. Additionally, there was no indication in the record that SCO Royker had any knowledge of or involvement in the incident that resulted in the charge.

We are satisfied that the H.O.'s decision finding appellant guilty of the disciplinary offense charged was based on substantial evidence in the record. As explained in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." See also Mead Johnson & Co. v. Borough of S. Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967); In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961). The substantial evidence standard permits an agency to apply its expertise where the evidence supports more than one conclusion. "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting DeVitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).

In this case, SCO Ellis saw appellant on top of Sessoms, strangling him with a shoelace. Although appellant contended that he was merely "hog-tying" Sessoms in self-defense, H.O. Shepperd found the claim not credible because there was insufficient time to remove the shoelace from his shoe in the middle of a fight and because "staff reports clearly show that appellant had the shoelace around Sessoms' neck." Appellant did not seek to confront and cross-examine any officers until the adjudication was completed, and even then he did not request to confront the corrections officer who witnessed the event and issued a report concerning it. Moreover, appellant called no witnesses to support his version of the incident. He could have called any inmate on the tier at the time of the incident who may have witnessed the incident or any of the custody staff involved in the matter, but he chose not to do so. Appellant made no attempt to produce witnesses that could support his version of the incident, or confront adverse witnesses in an attempt to discredit their account of the charge.

Appellant claims that no strangulation marks were visible when the medical staff examined Sessoms immediately after the incident and that without strangulation marks on the victim, there is no evidence of his guilt. We are satisfied that there does not need to be evidence of injury to the victim for there to be substantial, credible evidence to support a determination of guilt. Regardless of whether or not an injury occurred, appellant was seen by SCO Ellis, a credible eyewitness, strangling Sessoms with a shoelace. Based on the staff reports, the H.O. was able to determine based on substantial evidence in the record that appellant was guilty of assault with a weapon.

Appellant contends that the sanction imposed was arbitrarily applied and is excessive because the H.O. failed to consider the fact that Sessoms suffered no injuries. We are satisfied, however, that the sanctions imposed were reasonable in light of the infraction and appellant's prior history. The infraction charged, assaulting another person with a weapon, is a serious charge and as noted by the H.O. could have led to injury or death, thereby justifying strict sanctions. Furthermore, the sanctions imposed are within the parameters set by the DOC rules for an "asterisk" offense. One factor that the DOC may consider in setting disciplinary sanctions is the inmate's "past history of correctional facility adjustment." N.J.A.C. 10A:4-9.17(a)1. Appellant's correctional facility adjustment has been poor. The H.O. noted that appellant has a long history of disciplinary infractions, including prior fighting and assault charges. Therefore, in light of the DOC's administrative rules, the nature of appellant's current offense, and his prior disciplinary infractions, the sanctions imposed for appellant's attempting to strangle another inmate with a shoelace were reasonable. Accordingly, the final agency decision of the DOC, upholding the decision of the H.O. based upon substantial evidence, is affirmed.

Affirmed.

 

The SCO's name is spelled "Royker" in appellant's statement, "Roler" in the adjudication of disciplinary charge and "Roker" in the State's brief.

(continued)

(continued)

12

A-5534-04T1

 

September 8, 2006