VICTOR PEEL 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NOT FOR PUBLICATION WITHOUT THE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-5565-08T15565-08T1

VICTOR PEEL,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

Submitted June 8, 2010 - Decided July 7, 2010

Before Judges Parrillo and Ashrafi.

On appeal from the Department of Corrections.

Victor Peel, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Victor Peel, an inmate incarcerated in East Jersey State Prison, but confined at South Woods State Prison at the time of the underlying incident, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding him guilty of disciplinary infractions *.004, fighting with another person, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, in violation of N.J.A.C. 10A:4-4.1. We affirm.

On May 15, 2009, Peel was in the prison recreation yard participating in a game of "hacky sack" with fellow inmates including Shawn Connolly. The inmates had agreed on a set of rules governing the conduct of the game, including one that required a player be pegged with the sack, below the knee, upon the commission of a penalty. According to Peel, Connolly committed a penalty and it being Peel's turn to enforce the penalty, he attempted to peg Connolly in the leg, but missed and the sack hit the ground. Connolly then picked up the sack, threw it, and, according to Peel, hit him in the face, causing a verbal confrontation to ensue. By his own admission, during this altercation, Peel "spit at [Connolly] hitting his leg and foot." This provoked Connolly to spit back at Peel but contact was never made as it hit the ground as Peel walked away.

Afterwards, when yard activities ceased, and once inside the correctional facility, Peel and Connolly engaged in a physical altercation. Senior Corrections Officer (SCO) Koerner observed the inmates exchanging punches and immediately called an emergency code for assistance. The emergency code ceased all institutional operations to allow officers to respond to the emergency area. SCO Koerner then ordered Peel and Connolly to cease fighting and lie on the floor.

Upon the officers' arrival, both inmates were transported to holding cells and separately interviewed. Both Peel and Connolly acknowledged that the fight was over a game of "hacky sack." During this initial interview, Peel admitted to spitting at inmate Connolly, which initiated the ensuing fight. In the course of the subsequent medical evaluations, it was noted that Connolly's hand was reddened, although he attributed the coloration to an old injury. Peel, on the other hand, was treated for multiple wounds on both of his arms and right knee, then medically cleared for placement in Pre-Hearing Detention.

Peel was served with the disciplinary charges *.004 and *.306 within twenty-four hours. An investigation was thereafter conducted, during which Peel was asked, but did not provide, the names of any witnesses. At his request, Peel received the assistance of counsel-substitute and a hearing was thereafter convened before a neutral hearing officer. Peel pled not guilty to the charges and claimed that he was acting in self-defense. He acknowledged, however, that he had a verbal altercation with Connolly in the recreation yard, which escalated to a physical altercation once inside the correctional facility, and that he spit on inmate Connolly. Peel stated:

[W]e had words out in the Rec Yard. We came back inside[,] he grabbed me, kind of pushing. There were no punches thrown. I did get a gash on my arm. I was walking out of the cell[,] he grabbed me and pulled me back in. My arm hit the door sash. I restrained him again. Yes, I spit on I/M Connolly.

Although Peel was offered and initially declined the opportunity to call witnesses on his behalf during the investigation and earlier in the hearing, later in the hearing Peel requested to present a witness statement. The hearing officer, however, denied the request because Peel declined to name the witnesses during investigation so the investigating Sergeant could obtain the statement first-hand. Peel also declined the opportunity to confront adverse witnesses.

In adjudicating Peel guilty of the disciplinary charges, the hearing officer relied on the officers' report and observations, Peel's statement, and the medical reports. Peel received a combined sanction of fifteen days' detention, with credit for time served, 180 days administrative segregation, 180 days' loss of computation time, and thirty days' loss of recreation privileges. On administrative appeal, the Assistant Superintendent upheld the decision of the hearing officer. This appeal follows wherein Peel argues:

I. THE FINAL AGENCY DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE PEEL FAILED TO RECEIVE ALL THE PROCEDURAL DUE PROCESS TO WHICH HE WAS ENTITLED, INCLUDING THE RIGHT TO CALL A WITNESS AND BECAUSE THE DECISION WAS NOT BASED ON SUBSTANTIAL, CREDIBLE EVIDENCE OF GUILT.

II. PEEL'S TESTIMONY AND INJURIES SUFFICIENTLY DEMONSTRATED THAT HE WAS ACTING PURELY IN SELF-DEFENSE AND ONLY USED THE FORCE REASONABLY NECESSARY FOR SELF-DEFENSE.

Essentially, Peel contends that his due process rights were violated because he was denied the opportunity to provide a witness's statement and there was no evidence to support the charges. We disagree.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Furthermore, it is not our function to substitute our independent judgment for that of an administrative body, . . . where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.

[Ibid. (internal citations omitted).]

Governed by this standard, we find no basis to disturb the result, as we are satisfied that the DOC's ultimate determination is sufficiently grounded on substantial credible evidence, Henry, supra, 81 N.J. at 579-80, and the administrative adjudication comported with procedural due process. See Jacobs v. Stephens, 139 N.J. 212, 219-20 (1995); McDonald v. Pinchak, 139 N.J. 188, 194-96, 202-03 (1995).

Suffice it to say, Peel admitted on several occasions that he spit at inmate Connolly, an incident that precipitated a physical altercation between the two, wherein a mutual exchange of punches was witnessed by a corrections officer. Such proof, establishing Peel to have provoked his attacker and that the resultant physical altercation involved a mutual exchange of force, is amply sufficient to overcome Peel's claim of self-defense. See DeCamp v. New Jersey Dep't of Corrections, 386 N.J. Super. 631, 640 (App. Div. 2006); N.J.A.C. 10A:4-9.13(f). Regarding the hearing officer's denial of Peel's request to submit a witness statement, we discern no due process violation. Peel earlier failed to proffer such proof, although clearly afforded the opportunity to do so on at least two prior occasions. See N.J.A.C. 10A:4-9.13(a). His belated request, based merely on hearsay, remains unverified and unsupported by any identification of the witness or the content of his supposed statement.

 
Accordingly, we conclude that Peel was afforded all the process due and that the finding of guilt was supported by substantial credible evidence.

Affirmed.

"Hacky sack" is a game involving a small beanbag (sack), approximately two and a half inches in diameter. Due to the conditions of the prison yard, the sack was apparently covered in spit.

On line 14(c) of the adjudications, which states, "[a]ll witnesses the inmate asks to be called including those requested through the investigator[,]" the hearing officer noted Peel "declined to name witnesses."

While Peel asserts in his reply brief that he did in fact name the witness at the hearing, there is no documentation that this occurred.

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A-5565-08T1