ANIBAL HERNANDEZ 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NOT FOR PUBLICATION WITHOUT THE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-4139-10T2

ANIBAL HERNANDEZ,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________

March 19, 2012

Submitted March 6, 2012 - Decided

Before Judges Reisner and Accurso.

On appeal from the New Jersey Department of Corrections.

Anibal Hernandez, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).

PER CURIAM

In this inmate disciplinary matter, Anibal Hernandez appeals from a final determination of the Department of Corrections finding him guilty of prohibited act *.005, threatening another with bodily harm, and prohibited act *.708, refusing to submit to a search. The agency imposed an aggregate sanction of 10 days detention, 120 days administrative segregation, and 120 days loss of commutation time. We affirm.

I

On January 24, 2011, a female corrections officer came to appellant s cell at 7:15 a.m. and directed him "to step out of his cell for a routine cell search." He responded by saying that he was sleeping, cursing the officer, calling her a "bitch," and saying that if she came into his cell, she would see what would "happen to your ass." The inmate was charged with threatening another and refusing to submit to a search.

The inmate was given a copy of the written charges on January 25, 2011. He was permitted representation by counsel substitute, and was allowed to propound written questions to the corrections officer. He rescinded his initial request for a polygraph test. At his hearing he relied on his written statement claiming that he asked the officer to give him a few minutes to get dressed. His statement did not directly deny making the statements the officer reported that he made.

The hearing officer found that the charges were substantiated, reasoning that the corrections officer's report was persuasive and the confrontation questions did not contradict the report. The inmate appealed to the prison administrator, claiming that he was sleeping when the corrections officer arrived at his cell, that the officer cursed at him, and that the officer did not answer several of his confrontation questions. He stated on the first page of the appeal form that he did not deny using abusive language toward the officer. The administrator upheld the hearing officer's decision.

II

On this appeal, the inmate raises the following points for our consideration:

POINT I: NO ACTUAL THREAT OF BODILY HARM WAS EVER MADE TO THE S.C.O. WHO ISSUED THE CHARGE.

POINT II: THE D.H.O., COUNSEL SUBSTITUTE, AND ADMINISTRATION FAILED TO ACKNOWLEDGE APPELLANT'S DIMINISHED CAPACITY AT THE TIME OF THE INCIDENT.

POINT III: THE D.H.O. VIOLATED APPELLANT'S DUE PROCESS RIGHTS IN THAT, ALTHOUGH CONFRONTATION WAS GRANTED, ANSWERS WERE VAGUE AND NON-ANSWERS WERE ACCEPTED.

POINT IV: DUE PROCESS REQUIRES THAT THE D.H.O. STATE THE REASON(S) FOR FINDING A WITNESS' STATEMENT CREDIBLE OR NOT CREDIBLE.

POINT V: DUE PROCESS REQUIRES RULES TO BE POSTED IN THE INSTITUTION TO ALLOW INMATES TO KNOW WHAT STANDARDS THEY ARE BEING HELD TO.

Having reviewed the entire record, we conclude that these arguments are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Our review of the agency's decision is limited. We must defer to the agency's determination so long as it is supported by substantial credible evidence and is consistent with applicable law. In re Taylor, 158 N.J. 644, 656 (1999). There was sufficient credible evidence to support a finding that defendant uttered the statements set forth in the officer's report. Those statements plainly constituted a threat and a refusal to allow a search. While being awakened early in the morning may have been inconvenient and annoying to the inmate, those circumstances do not establish a defense of "diminished capacity."

Finally, the inmate's reliance on Williams v. Department of Corrections, 330 N.J. Super. 197 (App. Div. 2000), is misplaced, because in this case, unlike Williams, the hearing officer provided a sufficient explanation for his decision to credit the corrections officer's version of the incident. Blackwell v. Department of Corrections, 348 N.J. Super. 117 (App. Div. 2002), is not on point for the same reason. Moreover, in his administrative appeal, the inmate admitted making the statements to the officer.

Affirmed.