UMAR M. ALI KHAN v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

UMAR M. ALI KHAN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

December 6, 2016

 

Submitted November 16, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from the New Jersey Department of Corrections.

Umar M. Ali-Khan, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief).

PER CURIAM

Umar Ali-Khan appeals from a final determination of the Department of Corrections (DOC), after a rehearing, upholding a finding of guilt and the imposition of the original sanctions. After the administrative proceeding was conducted, it was determined that Ali-Khan committed prohibited acts .256, refusing to obey an order of any staff member; and .402, being in an unauthorized area, both in violation of N.J.A.C. 10A:4-4.1(a). Following our review of the record in light of the applicable law, we affirm.

Ali-Khan is an inmate currently incarcerated at the Adult Diagnostic and Treatment Center in Avenel (Avenel). On September 16, 2013, Ali-Khan was found guilty of prohibited acts .256 and .402, and was sentenced to a combined judgment of fifteen days' detention; ninety days' administrative segregation; sixty days' suspension1; sixty days' loss of commutation time; and ten days' loss of recreation privileges. Ali-Khan appealed. We remanded the matter to the DOC because the disciplinary hearing was conducted by more than one hearing officer, contrary to the court's holding in Ratti v. Dep't of Corrections, 391 N.J. Super. 45 (App. Div. 2007). Ali-Khan v. N.J. Dep't of Corr., No. A-0537-13 (App. Div. Dec. 5, 2014) (slip op. at 2).

On January 2, 2015, a rehearing was held, at the conclusion of which Ali-Khan was found guilty on the charges. Thereafter, the DOC rendered a final decision upholding the finding of guilt.

This matter arises from an incident occurring on September 7, 2013. Senior Corrections Officer Billero observed Ali-Khan walking in a first-floor corridor during the "visit package movement." Upon receiving confirmation from the wing officer that Ali-Khan was not listed on that movement and was not authorized to leave his wing, Billero ordered Ali-Khan to return to his wing. Ali-Khan refused and verbally confronted Billero. After several more orders by Billero to return to his wing, Ali-Khan complied.

On September 9, 2013, Ali-Khan was served with disciplinary charges .256 and .402, an investigation was conducted, and charges were referred to a hearing officer for further action. Ali-Khan was found guilty on both counts and appealed.

After the appeal and remand, the rehearing commenced in December after being adjourned numerous times to allow the hearing officer to receive and review evidence. At the hearing, Ali-Khan was provided with the opportunity to make a statement, call witnesses, and confront adverse witnesses.2

With respect to the two charges, Ali-Khan testified that he was both authorized to be in the area, as he had been given a pass, and that he complied with Billero s order. Billero, who was cross-examined by Ali-Khan, testified that his exchange with Ali-Khan was confrontational, but that he did not call for assistance because "after [the second or third] direct order, [Ali-Khan] complied." Billero also testified that Ali-Khan "was not allowed to be on the first floor at the time."

Based upon the hearing officer's review of the evidence, which included the officer's reports and the inmate pass locator list, he determined that Ali-Khan participated in an unauthorized movement. As such, the hearing officer found Ali-Khan guilty on both charges and re-imposed the original sanctions.

On January 4, 2015, Ali-Khan administratively appealed the decision of the hearing officer. On January 16, 2015, the Assistant Superintendent, acting on behalf of the DOC, upheld the guilty finding and the imposition of sanctions.

On appeal, appellant raises the following argument

POINT I

THE FINDINGS OF [THE HEARING OFFICER] MUST BE REVERSED BECAUSE THEY ARE BASED ON HER OPINION AND SPECULATIONS, NOT FACT OR EVIDENCE AND ARE A DENIAL OF DUE PROCESS OF LAW.

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. See 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 strong presumption of reasonableness. City of Newark v. Nat. Res. Council in Dep't of Envtl. Prot., 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). In addition,

[I]t 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. (citations omitted).]

Concerning the issue of due process, Ali-Khan received notice of the charges against him twenty-four hours prior to the hearing and acknowledged he was informed of this court s remand and the need for a rehearing to be held on or about December 9, 2014. The hearing was conducted by an impartial hearing officer from the DOC's central staff office (the Office). The Office conducts hearings of alleged infractions. Ali-Khan did not request the assistance, nor was he entitled to counsel substitute because the charges against him were non-asterisk offenses. Ali-Khan was permitted to defend the charges after his plea of not guilty.

During the rehearing, Ali-Khan presented a witness on his behalf (Cole) and was provided with the opportunity to confront an adverse witness (Billero). Ali-Khan was provided with the adjudication report and all the evidence considered by the hearing officer. Ali-Khan signed the report indicating that the report accurately reflected the proceedings at the adjudication hearing.

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Prisoners are, however, entitled to certain limited protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the Office of the prison, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, the assistance of a counsel-substitute, and a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995); Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995). Predicated upon our review of the proceedings, we hold that the administrative adjudication comported with procedural due process.

We also hold that there was substantial credible evidence of appellant's guilt. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). The finding of guilt was based upon the testimonial and documentary evidence that Ali-Khan refused to obey an order of the officer and that he was in an unauthorized area. Ali-Khan's testimony to the contrary was determined to be not credible. In sum, we hold the evidence was substantial and "adequate to support [the] conclusion." Ibid.

Affirmed.

1 The suspension of the sanctions means that Ali-Khan will not have to serve those sanctions if he remains charge free for sixty days.

2 Ali-Khan requested Officer Cole as a witness who, upon Ali-Khan's request, authored a Special Custody Report that stated he did not recall the events of September 7, 2013. The hearing officer noted that Cole's report of his lack of memory may have been due to the passage of time from the event on September 7, 2013, and the date of the report in December 2014.