JEFFREY L. OWENS 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NOT FOR PUBLICATION WITHOUT THE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-5017-08T2

JEFFREY L. OWENS,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________

September 23, 2010

Submitted September 15, 2010 - Decided

Before Judges Sapp-Peterson and Simonelli.

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

Jeffrey L. Owens, appellant pro se.

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

PER CURIAM

Appellant Jeffrey Owens appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act .709, failure to comply with a written rule or regulation of the correctional facility, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Appellant is currently incarcerated at South Woods State Prison. He is serving a life sentence for murder.

On April 17, 2009, Teaching Assistant M. Prianciani witnessed a verbal altercation between appellant and inmate Faust inside the law library. The two inmates were agitated and yelling at one another in the area of the paralegals' work stations. As appellant walked toward Faust, Prianciani heard appellant say "meet me in the bathroom, we can do this." Prianciani believed that a fight was about to occur and activated the duress button, which signaled an emergency code to alert custody staff. Custody staff responded to the area, secured appellant and Faust, and placed them in detention.

Appellant and Faust were both charged with prohibited act *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility.1 A hearing was held on April 20, 2009, before Hearing Officer Jantz. At the hearing, appellant requested and received counsel substitute, and statements from inmates Rountree and Taylor, both of whom confirmed that an incident had, in fact, occurred between appellant and Faust in the library. Appellant was also offered, and declined, to make a statement and confront adverse witnesses. His counsel substitute stated that (1) Prianciani "jumped the gun by hitting the duress button;" (2) Prianciani assumed there was going to be a fight, although she did not hear what transpired or heard any yelling; and (3) Faust should not have been in the paralegal area.

Jantz adjourned the hearing in order to obtain Faust's version of the incident. Jantz also reviewed a "special report" from Corrections Officer Robbins, who was letting inmates out of the library at the time the emergency code was called and did not hear anything. The hearing resumed on April 22, 2009. Jantz downgraded the charge to prohibited act .709, failure to comply with a written rule or regulation of the correctional facility namely, inmate handbook Rule #6, which prohibits "loud calling, yelling, noisy behavior, whistling or hollering." Appellant pled not guilty to the amended charge.

Jantz concluded that although Robbins did not report hearing anything at the time the emergency code was called, this did not mean that appellant and Faust were not yelling inside the law library prior thereto. Crediting Prianciani's statement, Jantz found that a verbal altercation occurred between appellant and Faust, which caused Prianciani, "to hit the duress button indicating [the] behavior was in a manner louder than just talking," in violation of Rule #6. Jantz sanctioned appellant to time served.

On April 23, 2009, appellant administratively appealed, contending that Jantz improperly changed the charge to prohibited act .709 instead of adjudicating him not guilty of prohibited act *.305. He also contended that Jantz's decision was not supported by substantial evidence.

On April 29, 2009, Assistant Superintendent Hepner affirmed Jantz's decision. This appeal followed. On appeal, appellant again contends that Jantz's decision was not supported by substantial evidence. We disagree.

We reverse an agency's decision only where it is arbitrary, capricious, or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Unless we find that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005).

N.J.A.C. 10A:4-9.16(a) requires a hearing officer to amend a charge "[w]henever it becomes apparent at a disciplinary hearing that an incorrect prohibited act is cited in the disciplinary report but that the inmate may have committed another prohibited act[.]" An adjudication of guilt of the charge must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). "'Substantial evidence'" means "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). The term has also been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). The substantial evidence standard permits an agency to apply its expertise where the evidence supports more than one conclusion. "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).

Based on our review of the record, we are satisfied that Jantz properly amended the charge to prohibited act .709, and there was substantial evidence supporting an adjudication of guilt on that charge. Prianciani personally observed appellant and Faust yelling at one another. This is a violation of prohibited act .709. The DOC's decision affirming Jantz's decision was, therefore, not arbitrary, capricious, or unreasonable.

1 Appellant was also charged with, and found not guilty of, prohibited act *.005, threatening another with bodily harm or with an offense against his or her person or his or her property.