DONNELL LILLY 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NOT FOR PUBLICATION WITHOUT THE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-2263-08T12263-08T1

DONNELL LILLY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted: December 2, 2009 - Decided:

Before Judges Axelrad and Fisher.

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

Donnell Lilly, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Donnell Lilly appeals from a final determination of the Department of Corrections (DOC), adjudicating him guilty of disciplinary infraction *.004, fighting with another person, as delineated in N.J.A.C. 10A:4-4.1. The hearing officer imposed ten days' detention, ninety days' administrative segregation, and ninety days' loss of commutation credit, the latter two sanctions suspended for sixty days. Following an administrative appeal, the associate administrator upheld the decision of the hearing officer. Appellant then filed an appeal of the agency's decision.

On appeal, appellant argues his due process rights were violated because the hearing officer failed to consider the evidence establishing that appellant was attempting to protect himself and the hearing officer merely catalogued the evidence without an explanation of specific findings. We reject appellant's arguments and affirm.

On October 25, 2008, Senior Corrections Officers (SCO) R. Mackey and G. Johnson observed appellant and two other inmates fighting in the day room. SCO Johnson then called an emergency code. Lieutenant Sorbino, Sergeants Mountcastle-Thomas and James, and several other officers responded to the emergency code. When Lt. Sorbino arrived, an additional emergency code was called. From the investigation and interview with the inmates, the officers determined that the fight started in the bed area of the golf trailer when appellant was splashed with a chemical agent in his face, and on his left hand and arm. The fight then spilled out into the day room where it was observed by the officers. The officers secured the unit and escorted the inmates who had been fighting off the tier. Appellant was treated at the emergency room for second-degree burns.

Appellant requested and was granted the assistance of counsel substitute. Appellant and his counsel substitute stated at the hearing that someone threw something on him while he was sleeping and counsel substitute added that appellant "was delusional [and] he didn't know if he was being attacked." Appellant did not expressly argue before the hearing officer or in his administrative appeal that he was acting in self-defense, namely, that the fight observed by the officers was appellant's attempt to make his way to the officers' desk area in order to resist the combatants' attack. The hearing officer expressly relied on the staff reports to support the charge of fighting and implicitly considered that appellant was the non-aggressor and had been injured as a mitigating factor in the imposition of the sentence.

Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). Here, in determining guilt, the hearing officer relied on reports from the officers who were either present at the scene or responded to the emergency code as well as appellant's argument that he was attacked. Based on this evidence, the hearing officer concluded, and clearly articulated, that although appellant was scalded with an unidentified chemical agent in his bed area and severely burned, he was guilty of fighting because he left that area and was observed fighting with the other two inmates in the day room.

As appellant did not expressly raise the defense of self-defense, the hearing officer did not perform an analysis of the following DeCamp v. New Jersey Department of Corrections, 386 N.J. Super. 631, 640 (App. Div. 2006) factors:

(1) who was the initial aggressor; (2) whether the force used to respond to the attack was reasonable; (3) whether the inmate claiming self-defense had a reasonable opportunity to avoid the confrontation by alerting prison authorities; and (4) any other factors that would make the use of force by the inmate claiming self-defense unreasonable, because it would interfere with or otherwise undermine the orderly administration of the prison.

[See also N.J.A.C. 10A:4-9.13(f), effective July 2, 2007 (listing similar factors for an inmate's self-defense claim).]

We are satisfied, however, that defendant's claim of self-defense would have been insufficient to exonerate him of the disciplinary infraction under the case law and administrative regulation. There is no evidence in the record that appellant made any effort to alert the officers after he was attacked in his bed area. Instead, he responded by following the other two inmates into the day area and fighting with them. It is apparent, though, from the suspended sentence, that the hearing officer clearly considered that appellant had been attacked and injured as a mitigating factor.

Affirmed.

The effect of suspending a sanction for sixty days is that if appellant remains charge-free for sixty days, he does not have to serve that portion of the sanction.

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A-2263-08T1

December 14, 2009