OSHEED CHERRY 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NOT FOR PUBLICATION WITHOUT THE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-4623-08T34623-08T3

OSHEED CHERRY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

 

Submitted May 24, 2010 - Decided

Before Judges R. B. Coleman and Alvarez.

On appeal from the New Jersey Department of Corrections.

Osheed Cherry, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Kevin R. Jespersen, Assistant Attorney General, on the brief).

PER CURIAM

Osheed Cherry, an inmate currently incarcerated at the Garden State Youth Correctional Facility, appeals from a disciplinary sanction imposed as a result of his commission of an institutional infraction. We affirm.

On April 20, 2009, Hearing Officer J.W. Osvart found Cherry guilty of violating N.J.A.C. 10A:4-4.1(a), prohibited act *.005, "threatening another with bodily harm or with any offense against his or her person." Hearing Officer Osvart imposed a sanction of fifteen days detention, 180 days administrative segregation, and 180 days loss of commutation time. Cherry then appealed to the Commissioner of the Department of Corrections (DOC); on April 22, 2009, Assistant Superintendent Dean Campbell upheld the adjudication and resulting sanction.

The charge was lodged on April 17, 2009. Senior Corrections Officer Van Note had been supervising Cherry while he completed extra duty, cleaning the "max yard" because of an on-the-spot correction. On-the-spot corrections are "the immediate imposition of a sanction on an inmate for violation of a minor disciplinary infraction." 29 N.J.R. 2187(b) (May 5, 1997). Van Note alleged that during this assignment Cherry raised a deck brush that was in his hand and said, "F--k this, I'll swat you with this." Senior Corrections Officer Scott was also present and the incident report he filed described the event in similar fashion. A preliminary incident report was also filed by Sergeant Cassidy, in which he stated that as he arrived at the door of the max yard, he witnessed Cherry threatening Van Note, and directed that Cherry be handcuffed and escorted to detention.

Cherry's hearing was conducted on April 20, 2009, before Hearing Officer Osvart. Cherry did not present any adverse witnesses after being assigned counsel substitute and being offered the opportunity to do so. He merely denied threatening the officer, claiming that it was all a "misunderstanding." Hearing Officer Osvart found Cherry guilty based on the witnesses' reports and the absence of any testimony to the contrary. The adjudication of disciplinary charge was signed by counsel substitute acknowledging that it accurately reflected the nature of the hearing.

An adjudication of guilt of a disciplinary infraction must be supported by "substantial evidence." See Jacobs v. Stephens, 139 N.J. 212, 222 (1995). See also Avant v. Clifford, 67 N.J. 496, 530 (1975); N.J.A.C. 10A:4-9.15(a). We "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) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Cherry's conduct falls completely within the purview of disciplinary infraction *.005. He offered no evidence to dispute the proofs presented other than his claim that the matter was just a misunderstanding. It is true that the hearing officer relied on the witnesses' written statements as opposed to live testimony; however, in the absence of any proofs to the contrary, he could reach no other result.

Even on appeal, Cherry only asserts that the sanctions were imposed on less than substantial evidence as required by law. Although we agree as to the standard, we disagree that the hearing officer improperly weighed the evidence. In the face of three witness statements, the hearing officer had little choice but to find the officers credible and Cherry's denial incredible. And a hearing officer's determination as to credibility is entitled to deference. See State v. Locurto, 157 N.J. 463, 474 (1999). Deference is particularly appropriate in this case because Cherry does not deny the incident occurred, only insists that he was misunderstood.

Cherry's other point on appeal is that he was denied his right of confrontation and cross-examination. There is no record support for this claim. The adjudication sheet reflects that the hearing officer asked Cherry if he wanted to confront or cross-examine adverse witnesses and that he declined. Furthermore, Cherry's counsel substitute signed the appropriate line indicating that the information contained on the form, including the proffer of an opportunity to confront or cross-examine witnesses, was accurate. Hence, there is no basis for this claim either.

Nothing in the record would cause us to disturb the hearing officer's conclusion. It is neither "arbitrary, capricious [n]or unreasonable" and is "supported by substantial evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80 (citation omitted).

Having found that the evidence substantiated the charge as written, Assistant Superintendent Campbell denied Cherry's request for leniency because it was "not warranted given the nature of the offense." Under the circumstances, that decision is reasonable as well.

 
Affirmed.

(continued)

(continued)

5

A-4623-08T3

July 2, 2010