ANTHONY BOONE v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5881-04T3

ANTHONY BOONE #231911,

Defendant-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Plaintiff-Respondent.

_______________________________________

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September 6, 2006

Submitted August 30, 2006 Decided

Before Judges Yannotti and Seltzer.

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

Anthony Boone, appellant pro se.

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

 
PER CURIAM
Anthony Boone is an inmate presently incarcerated at the New Jersey State Prison in Trenton, where he is serving sentences for murder, aggravated assault, receiving stolen property, possession of a controlled dangerous substances and unlawful possession of a weapon. Boone appeals from a final determination of the Department of Corrections (Department), which found that Boone committed prohibited act .305, making a false statement to a staff member. We affirm.
The incident that resulted in the charge occurred on May 12, 2005 at East Jersey State Prison. On that date, Boone submitted a "remedy form," in which he stated that, while he was on his way to the medical department, Senior Correction Officer Sorrell (Sorrell) "dropped his shoulder" and tried to "bump" him as a "ploy" to justify an assault charge or "get [a] negative reaction" from Boone. Boone wrote that he avoided any contact with Sorrell and he asked that the surveillance tapes of the area be reviewed and secured as evidence in the matter.
Sergeant Morris (Morris) investigated Boone's complaint. In his report, Morris stated that at the time of the incident, Boone was traveling to the infirmary. Officer Rokisky (Rokisky) checked Boone's pass and Boone proceeded around Rokisky towards the infirmary. Boone passed Sorrell, who was assigned to the area. Boone claimed that Sorrell had "dipped" his shoulder into him, trying to make contact or make Boone assault him. Morris asked Boone to show him exactly what had happened. Morris reported that Boone stood up and "displayed a dip and sway motion like a boxer would use during a fight to avoid a punch thrown." Boone also reported that he had to use a dip and sway motion to avoid contact with Sorrell. Morris obtained the surveillance tape and wrote that it showed no such action by either Sorrell or Boone. Boone admitted that he wrote the remedy form and Morris informed Boone that, because he saw no actions on the video tape which substantiated his statements, he was going to charge Boone with committing prohibited act .305, providing a false statement to a staff member.
On May 24, 2005, Boone was served with a disciplinary report for the .305 charge. Sergeant Manstream (Manstream) investigated the charge and Boone pled not guilty. Manstream wrote in his report that the video tape did not show Sorrell dipping his shoulder in an attempt to bump Boone. Manstream found that there was sufficient evidence to support the charge and he referred the matter to a hearing officer for adjudication.
A hearing in the matter was held on May 27, 2005. At Boone's request, a counsel substitute was permitted to assist him at the hearing. The hearing officer's adjudication report indicates that Boone demonstrated what he claimed Sorrell had done. Boone's counsel substitute asserted that Boone had complained about Sorrell "a number of times" and "there is an ongoing problem." He stated that the incident of May 12, 2005 was an attempt by Sorrell to provoke Boone into reacting. Counsel substitute also said that the area where Boone passed Sorrell was small, making contact "more likely." Boone initially sought confrontation but withdrew that request at the hearing. Counsel substitute signed the adjudication form, confirming that it accurately reflected what had taken place at the hearing.
Hearing Officer Lance Meehan (Meehan) viewed the surveillance tape. Neither Boone nor his counsel substitute were permitted to see the video tape since that would compromise the use of the camera as a security device. Meehan reported that Boone passed very close to the officer. The officer was "rocking slightly" but was "basically standing still." According to Meehan, the officer did not drop his shoulder and he did not make any move that would have caused Boone to step aside or stop. Meehan noted that, due to the officer's proximity to Boone, if the officer intended to bump Boone, or make it appear that he was going to, he could have done so easily. Meehan stated any such moves would have been visible on the video tape but none were seen.
The hearing officer found Boone guilty of the charge. He summarized his findings:
Boone is charged with providing a false statement on a remedy form. He reported that the officer tried to bump him. He denied guilt, but his demonstration of what he says the officer did, as well as review of the video of the incident, do not support his claim. The officer makes no move that could be considered trying to bump Boone, and due to their close proximity, he could easily have bumped the inmate or forced Boone to step aside, which he does not.

The hearing officer recommended that the matter be referred to the Classification Committee to determine whether Boone should be transferred to another facility. The hearing officer stated, "It is hoped that if a transfer is needed, it can be arranged to avoid further problems between Boone and staff at [East Jersey State Prison]."
Boone filed an administrative appeal on May 29, 2005, alleging that the facts had been misinterpreted and the matter had not been adjudicated in accordance with applicable standards. Boone requested that the decision be stayed pending appeal. On June 1, 2005, the Associate Administrator rejected Boone's appeal and denied his request for a stay. The Associate Administrator found that the hearing officer's decision was based on substantial evidence. This appeal followed.
Boone raises the following contentions for our consideration. Boone argues that he was not given a fair opportunity to contest the charge. Boone asserts that he initially requested confrontation and cross examination of Officer Niese, who Morris purportedly asked to investigate Boone's medical schedule. Boone contends that he withdrew his request for confrontation only after the hearing officer agreed that Morris' report did not accurately describe what was shown on the video tape. Boone further argues that the hearing officer's decision was not based on substantial evidence because there was no evidence to corroborate the assertions of the correction officers.
The scope of our review in an appeal from a final decision of an administrative agency is narrow. We will not reverse an agency's decision unless it is shown to be arbitrary or capricious or unsupported by substantial credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-90 (1980). An adjudication of guilt in a prisoner disciplinary matter must be supported by substantial evidence. N.J.A.C. 10A:4-9.15(a). See also Jacobs v. Stephens, 139 N.J. 212, 222 (1995). Substantial evidence is "such evidence as a reasonable mind might accept to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). See also Mead Johnson & Co. v. S. Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967).
We are satisfied that the Department's finding that Boone committed prohibited act .305 is supported by substantial evidence. Boone alleged in his remedy form that Sorrell dropped his shoulder and tried to bump into him when Boone was passing on his way to the infirmary. Morris reviewed the surveillance tape and reported that it did not show Sorrell acting in the manner alleged by Boone in the remedy form. Morris' observations were corroborated by Meehan, who also reviewed the video tape and reported that Sorrell made no attempt to bump into Boone. The officers' comments regarding the surveillance tape provided substantial evidence for the hearing officer's determination that Boone made a false report to a staff member, thereby committing prohibited act .305.
We also find no merit in Boone's contention that he was not afforded a fair opportunity to contest the charge. Boone says that he was improperly denied confrontation. As we stated previously, Boone initially sought confrontation of Officer Niese, who purportedly had information concerning Boone's medical schedule. But Boone later withdrew his request for confrontation. Boone says that he did so only when the hearing officer said that the video tape supported his allegations.
We are unpersuaded by these contentions. We harbor serious doubts as to whether the hearing officer ever said that the video tape supported Boone's complaint, particularly since the hearing officer found to the contrary in the adjudication report. The record does not disclose why Boone elected to withdraw his request for confrontation. Nevertheless, we are not convinced that Boone was prejudiced by the lack of confrontation because it is unlikely that Niese would have provided any relevant information. Niese was not in the hall at the time when the incident occurred and he could not offer any testimony to substantiate Boone's allegations.
Affirmed.

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A-5881-04T3