CHRISTOPHER LEE 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NOT FOR PUBLICATION WITHOUT THE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-1766-08T31766-08T3

CHRISTOPHER LEE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________

 

Submitted September 21, 2009 - Decided

Before Judges Rodr guez and Chambers.

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

Christopher Lee, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Christopher Lee, an inmate at the Adult Diagnostic and Treatment Center, appeals from the October 28, 2008 final decision of the Department of Corrections (DOC), adjudicating him guilty of disciplinary infraction *.002, assaulting any person, N.J.A.C. 10A:4-4.1. We affirm.

These are the salient facts. On October 23, 2008, inmate Mitzenius approached Sergeant Huber with a swollen left eye and a request to go to the hospital. Mitzenius stated that he received the injury to his eye when he struck his face on his television set, after an accidental fall. Mitzenius also stated that he had a verbal dispute with appellant. He denied any physical contact and denied that appellant struck him. Upon questioning, appellant admitted to hitting Mitzenius. He alleged that he was justified because Mitzenius had touched his buttocks, while in the toilet area. The disciplinary charges followed.

After conducting an investigation, Sergeant Diehm referred the matter to court line. Appellant pleaded guilty with an explanation, he alleged acting in self-defense. Appellant, who had the assistance of counsel substitute, declined an offer to call his own witnesses or to confront the witnesses against him. The hearing officer Nolley found appellant guilty and imposed the following sanctions: ten days detention; ninety-five days administrative segregation; ninety-five days loss of commutation credit; and fifteen days loss of recreation privileges.

Appellant sought administrative review of the adjudication and sanctions. Assistant Superintendent Robert Chetirkin upheld the hearing officer's findings and sanctions.

Appellant now contends:

I. THE FINAL DECISION OF THE [DOC] WAS NOT BASED UPON FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ALSO LACKS THE NECESSARY ELEMENTS TO SUSTAIN GUILT BASED UPON SUBSTANTIAL CREDIBLE AND RELIABLE EVIDENCE IN THE RECORD AS A WHOLE.

II. [APPELLANT] HAD A RIGHT TO DEFEND HIMSELF UNDER NEW JERSEY LAW AND TO PROTECT HIMSELF WITH THE IMPLEMENTATION OF REASONABLE FORCE IN THE PRESERVANCE OF LIFE AND LIBERTY AGAINST ASSAULT UNDER THE FOURTEENTH AMENDMENT.

III. [APPELLANT] WAS DENIED EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS AT HIS DISCIPLINARY HEARING.

We reject these contentions.

First, we reject the argument that appellant's conduct was justified by self-defense, which is a recognized defense when an inmate is charged with fighting. DeCamp v. New Jersey Dep't of Corr., 386 N.J. Super. 631, 638 (App. Div. 2006); N.J.A.C. 10A:4-9.13(f). Here, it is clear that appellant had a reasonable opportunity to avoid the physical altercation. In fact, he assaulted Mitzenius. Moreover, unlike the DeCamp case, although Mitzenius initiated the interaction with an unauthorized touching, appellant responded with more violence than necessary. In DeCamp, the inmate was assaulted and his head was slammed into a concrete wall.

Second, from our careful review of the record, we conclude that appellant's disciplinary hearing comported with the necessary procedural due process requirements. McDonald v. Pinchak, 139 N.J. 188, 198-99 (1995). The process and procedures afforded to appellant by the DOC to contest the charges insured an appropriate level of rights generally accorded to prison inmates as determined by law. McDonald, supra, 139 N.J. at 195; Avant v. Clifford, 67 N.J. 496, 523 (1975).

Affirmed.

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A-1766-08T3

September 30, 2009