SEAN TYRE v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0809-05T20809-05T2

SEAN TYRE,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

____________________________

 

Submitted: May 31, 2006 - Decided June 26, 2006

Before Judges Axelrad and Payne.

On appeal from the Department of Corrections.

Sean Tyre, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Sarah B. Campbell, Deputy Attorney General, on the brief).

PER CURIAM

Sean Tyre, an inmate at Northern State Prison, appeals from a final agency decision of the Department of Corrections (DOC), upholding the adjudication and sanction for violation of disciplinary infraction *.253, engaging in, or encouraging a group demonstration, in violation of N.J.A.C. 10A:4-4.1.

According to the evidence presented at the agency hearing, on August 23, 2005 Senior Corrections Officer Holmes observed Tyre loitering on the stairs with seven other inmates after receiving his commissary. SCO Holmes brought the inmates to the officer's cage, where they were to receive an "on the spot charge" for being in an unauthorized area and sanctioned four hours extra duty. When Tyre was informed by SCO Holmes' supervisor, Sergeant Giuliano about the charge and penalty Tyre said, "I want to see a Lt. F-k this, we ain't going to take this, F-k you." The officer further reported there were close to 200 inmates in the holding area waiting to return to their wing, and he concluded that the statement that Tyre was making along with the raising of his voice, "could have created a bad situation in such a sensitive area." Sgt. Giuliano further indicated a feeling that "Tyre was trying to encourage the entire holding cage to riot or hold a group demonstration." The Sergeant also informed the hearing officer that Tyre was less than five feet from the other inmates when he made the statement and that he removed Tyre from the area before the other inmates could react to the statement. Based on Sgt. Giuliano's report, Tyre was initially charged with *.252, encouraging others to riot, which was administratively reduced to encouraging a group demonstration.

Tyre submitted a statement to the hearing officer claiming he had simply requested to speak with the Sergeant. Counsel substitute stated in the initial hearing and submitted a written defense in the reconvened hearing that the brief conversation between Tyre and Sgt. Giuliano was personal, isolated, and there was no evidence that it was overheard by any other inmate or that Tyre encouraged or intended to encourage a group demonstration. Based on the language, the volume, the proximity of other inmates, and the fact that a number of inmates had an "on the spot charge" for the same incident and would have a reason to be supportive of Tyre, the hearing officer found the statement to be inflammatory and designed to involve other inmates in the incident. He therefore found Tyre guilty of the amended charge and imposed sanctions of fifteen days detention, 300 days loss of commutation credit and 300 days administrative segregation.

The hearing officer's determination of guilt and sanction was sustained on administrative appeal. On appeal to us, Tyre claims he was denied due process and fairness when the hearing officer rendered an arbitrary and capricious decision unsupported by substantial evidence.

After considering the records and briefs, we are satisfied that Tyre's disciplinary hearing comported with all procedural due process requirements and the finding of guilt is supported by substantial credible evidence. Tyre received all due process protections to which he was entitled. See Jacobs v. Stephens, 139 N.J. 212 (1995) (reaffirming the procedural due process requirements for an inmate articulated in Avant v. Clifford, 67 N.J. 496 (1975)); see also McDonald v. Pinchak, 139 N.J. 188 (1995). Tyre was afforded counsel substitute and both he and his counsel were permitted to make a statement on the inmate's behalf. The record indicates that these statements were taken into consideration by the hearing officer. The inmate did not request any witness statements during the investigation of the charge or during the adjudication period, nor did he request in-person confrontation during the investigation and adjudication.

We are also satisfied the factual findings of the agency are supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(D); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); Earl v. Johnson & Johnson, 158 N.J. 155, 161 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); Moore v. Dep't of Corr., 335 N.J. Super. 103, 110 (App. Div. 2000); Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App Div. 2000). Sgt. Giuliano's report that the inmate raised his voice in close proximity to other inmates belies Tyre's statement in his brief that there was not a shred of evidence that his statement was audible to the other inmates in the area. The officer's concern with the loud inflammatory comments was heightened because of the compelling need to maintain the secure and orderly operation of the prison system. The inmate's statements became particularly problematic by use of the word "we," which could also be construed as encouraging a group demonstration, particularly where other inmates were facing similar "on the spot charges" and sanctions. There did not need to be menacing body language by the inmate for his comment to be deemed inflammatory. Nor does the absence of a report from SCO Holmes constitute exculpatory evidence. There is no evidence that SCO Holmes chose not to corroborate her supervisor's report. More likely, she did not prepare a report because she did not witness anything distinct from Sgt. Giuliano and was not directly involved in the incident.

Affirmed.

 

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A-0809-05T2

June 26, 2006