ANDRE KIMBROUGH v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5820-04T35820-04T3

ANDRE KIMBROUGH,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________

 

Submitted: February 28, 2006 - Decided March 21, 2006

Before Judges Axelrad and Payne.

On appeal from a Final Agency Decision of the Department of Corrections, 451373.

Andre Kimbrough, appellant, pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Andre Kimbrough, an inmate at East Jersey State Prison, appeals from a final agency decision of the Department of Corrections (DOC), upholding the adjudication and sanctions for violation of disciplinary charges of assaulting any person (*.002) (two counts) and attempting or planning an escape, (*.102). N.J.A.C. 10A:4-4.1(a).

On appeal, petitioner asserts due process violations, framed as the hearing officer arbitrarily impeding counsel substitute's efforts to adequately marshal the facts and prepare a defense and the agency arbitrarily denying counsel substitute's request for an extension of time to prepare an administrative appeal. Implicit in petitioner's argument is also a challenge to the substantive finding of guilt. We are not persuaded by petitioner's arguments and affirm.

Petitioner, a diabetic sentenced to a four-year sentence on two burglaries, had been released to a halfway house run by Integrity in Newark at the time of the charges. On March l6, 2005, he apparently failed to eat breakfast and did not take his insulin, and therefore suffered a reaction requiring medical intervention. Petitioner was given glucose and transported to St. Michael's Hospital, accompanied by Andre Wilson, a case aide from Integrity. After being evaluated by medical staff at the hospital, petitioner was approved for release, as he was conscious and alert, and his blood sugar level was normal.

For reasons that do not appear in the record, petitioner was to be returned to the prison rather than to the halfway house, a decision that was unknown to petitioner until he saw the guards approach him and Wilson in the emergency room. At that point, petitioner became agitated and he began walking in the direction of the exit. He ignored Officer Walker's instruction to stand still, and he continued to walk in the direction of the exit door. Petitioner then elbowed each of the two guards in the stomach as they attempted to restrain him.

A hearing was held on April 4, 2005 after delays to permit investigation and the collection of medical records. Petitioner made a statement and declined the opportunity to present witnesses or cross-examine adverse witnesses. His counsel substitute presented a defense of diminished mental capacity, contending that petitioner was incapable of forming the intent to commit the offenses because of low blood sugar. He argued that petitioner's conduct was the result of a diabetic reaction, not rational behavior. In support of his position, he presented an excerpt from the Mayo Clinic Family Health Book as to the short-term complications of low blood sugar, which include confusion and uncooperative behavior. Although petitioner's blood sugar level was normal at the time of the incident, his counsel substitute opined that either petitioner had been administered too much insulin, as evidenced by the fact that his dosage had been cut in half upon his return to prison, or that the oral glucose administered on the way to the hospital had caused an abnormal sugar level to appear normal. Counsel substitute further argued that no rational person would jeopardize an imminent conditional release by assaulting two guards. Unrelated to that argument, counsel substitute also argued that if petitioner had been planning an escape, he would have done so prior to the arrival of the guards.

After reviewing a variety of petitioner's medical records, the hearing officer rejected petitioner's defense that his actions were the result of his medical condition. The hearing officer referenced the hospital discharge reports, which indicated that petitioner was alert and oriented and his blood sugar was 105, which was within the normal range of 65 to 120. The hearing officer further noted that the statement of Wilson, an unbiased observer, confirmed that petitioner did not become agitated until he saw the officers, and further confirmed the officers' description of petitioner's behavior. The hearing officer concluded:

The evidence shows that any low blood sugar problem was resolved before the officers arrived (or he would not have been discharged from the hospital) and Kimbrough's actions were a response to his sudden discovery that he was being taken into custody.

Based on the evidence and testimony presented, the hearing officer rendered an adjudication of guilt on both of the charged infractions.

Following the adjudication, counsel substitute sought additional time beyond the forty-eight hours to file an appeal on petitioner's behalf to the prison administrator. N.J.A.C. 10A:4-11.1. He explained that he was unable to obtain the adjudication sheets needed to effectively prepare the appeal because petitioner had been stripped of his belongings and had been placed in a "dry cell." The request for an extension of time was denied by the administrator. The administrative appeal was reviewed, and petitioner's adjudication was affirmed on appeal. This appeal ensued.

After considering the record and briefs, we are satisfied that petitioner received all due process protections to which he was entitled. See Jacobs v. Stephens, 139 N.J. 212 (1995) (reaffirming the procedural due process requirements for an inmate articulated in Avant v. Clifford, 67 N.J. 496 (1975)); see also McDonald v. Pinchak, 139 N.J. 188 (1995). The hearing officer gave counsel substitute ample opportunity to present his defense. Moreover, the hearing officer adequately investigated petitioner's concerns, reviewed the medical reports and sufficiently considered, though rejected, petitioner's defense to the incident.

The factual findings of the agency are supported by substantial, credible evidence in the record. R. 2:11-3(e)(1)(D); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); Moore v. Dep't of Corr., 335 N.J. Super. 103, 110 (App. Div. 2000); Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App Div. 2000). The record is clear that petitioner had a normal blood sugar level and was alert and oriented at the time of the incident, and he did not become agitated until he saw the officers. Accordingly, the hearing officer properly rejected petitioner's diminished capacity defense as without factual or medical support and found that petitioner's reactions were a conscious response to his sudden discovery that he was being taken back into custody, not the result of a confused state of mind due to a diabetic reaction.

Although under the circumstances it would have been preferable for the administrator to have accommodated counsel substitute's request and granted a short extension of time for filing the administrative appeal, we are not convinced that the administrator's decision was an abuse of discretion or a violation of petitioner's due process rights. We are also satisfied that the agency's adjudication was supported by the evidence and that the provision of additional time would not have affected the outcome because the proofs did not support petitioner's theory of the case.

 
Affirmed.

(continued)

(continued)

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A-5820-04T3

March 21, 2006