THOMAS MEROLA v. DEPARTMENT OF CORRECTIONS

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2091-08T32091-08T3

THOMAS MEROLA,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted March 3, 2010 - Decided

Before Judges Stern and Sabatino.

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

Thomas Merola, appellant pro se.

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

PER CURIAM

Thomas Merola, an inmate at Northern State Prison, appeals a final agency decision of the Department of Corrections imposing disciplinary sanctions against him under N.J.A.C. 10A:4-4.1 for committing prohibited act *.004, fighting. Merola is serving a lengthy prison term for murder, robbery, and two aggravated assaults.

On the day in question, November 7, 2008, Senior Corrections Officer ("SCO") Singleton was performing a routine count of inmates. She heard rumbling and an argument emanating from Merola's prison cell. Singleton went to the cell and saw Merola and his cellmate, Hector Garcia, punching each other. Singleton then called in the incident and a Lieutenant Perdue responded. By that point the fighting had subsided. Merola had some abrasions and scratches, but otherwise had no visible injuries. However, Garcia was bleeding from the mouth and he complained of difficulty breathing. Garcia asked for and received medical attention.

Eventually, Garcia pled guilty to a disciplinary charge of fighting. Merola was likewise administratively charged with fighting. Merola pled not guilty and he requested a hearing to contest the charge. He was assigned a counsel substitute for the hearing, an inmate whose last name is Tirone.

The hearing took place on November 14, 2008. The hearing officer considered SCO Singleton's report, a report from Lieutenant Perdue, reports from two other sergeants, a Use/Force Report, the pre-hearing detention form, and a report of the infirmary nurse's examination of Merola and Garcia. The hearing officer's adjudication form indicates that Merola declined to make a statement on his own behalf, and that he declined to have witness statements collected or to confront adverse witnesses. The hearing officer's notes reflect that Merola's defense was, in essence, that there had been a "misperception of staff" that he was engaged in wrongful fighting.

After considering the proofs, the hearing officer found Merola guilty of fighting. The hearing officer specifically noted that the other combatant, Garcia, had pled guilty to fighting; that the injuries were consistent with the accusation against Merola of fighting; and that SCO Singleton had observed the two inmates engaged in fighting.

As sanctions, the hearing officer imposed 120 days of administrative segregation (sixty days of which was suspended), as well as credit for time served for detention. Merola then filed an internal administrative appeal, alleging, among other things, that he had been acting in self-defense in his encounter with Garcia. The Associate Administrator of the prison sustained the finding of guilt and the related sanctions in a final agency decision dated November 21, 2008, noting that the "decision of the hearing officer was based upon substantial evidence."

On appeal, Merola procedurally claims, among other things, that he was not present at the disciplinary hearing, and that Tirone's signature on the form was forged. He also claims that the hearing was not conducted in a timely manner within the seventy-two hours called for by the Department's regulations. Merola also alleges a denial of his constitutional rights. Substantively, Merola claims that the hearing officer failed to consider and address his contention of self-defense, allegedly in violation of De Camp v. Department of Corrections, 386 N.J. Super. 631 (App. Div. 2006) and the subsequently-enacted regulation on self-defense, N.J.A.C. 10A:4-9.13(f).

Our standard of review of the Department's administrative decision is limited. We must defer to the agency's exercise of its authority unless the appellant demonstrates that the agency's decision was "arbitrary, capricious[,] or unreasonable[,] or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). See also Jacobs v. Stephens, 139 N.J. 212, 222 (1995).

We have fully considered all of the procedural and substantive points raised by appellant, and are satisfied that they lack sufficient merit to be discussed in this written opinion, particularly in light of our limited scope of review. R. 2:11-3(e)(1)(E). Moreover, there is substantial credible evidence in the record as a whole, particularly, but not exclusively, SCO Singleton's first-hand observation of mutual fighting, to support the agency's decision. R. 2:11-3(e)(1)(D); see also McDonald v. Pinchak, 139 N.J. 188, 201 (1995). We add only a few comments.

With respect to Merola's contention that the hearing was not conducted within seventy-two hours, the record indicates that the hearing was initially postponed to allow presentation at the same time of proofs concerning a separate infraction against Merola under *.202, introduction of a weapon. The weapons charge was ultimately dismissed, to the benefit of Merola. The delay in the commencement of the hearing was brief and inconsequential.

As to Merola's claim, apparently raised for the first time on this appeal, that he was not present at his hearing, the hearing officer's adjudication form contains no indication to that effect. See N.J.R.E. 803(c)(10) (allowing admission of proof of the absence of entries in public records). The adjudication form specifically bears a signature for Tirone, the counsel substitute. Moreover, in his handwritten internal administrative appeal, Merola stated that he "was before Mr. Ruggerio [the hearing officer] on 11/14 at approx[imately] 11[:00] a.m. and pled not guilty[.]" Merola also stated in his internal appeal that he "did not see a hearing officer until Fri[.] 11/14/08[.]" These two distinct admissions by a party opponent, see N.J.R.E. 803(b)(1), are compelling and sufficient evidence rebutting Merola's current contention that he was not present at the hearing.

On the whole, we are satisfied that Merola received at least the minimum level of due process necessary for prison disciplinary hearings. Avant v. Clifford, 67 N.J. 496, 528-33 (1975).

Lastly, we note that Merola's claim of self-defense under DeCamp, supra, is substantially undercut by the fact that Garcia was found in need of immediate medical attention, and Merola exhibited only abrasions and scratches. In addition, Merola declined to develop a self-defense justification factually at his hearing, by presenting other witnesses or confronting the Department's own witnesses. If Merola wanted to persuade the hearing officer that Garcia was the aggressor, he could have insisted that Garcia be questioned, but he declined to pursue that avenue.

 
Affirmed.

The record does not disclose Tirone's first name.

(continued)

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6

A-2091-08T3

March 23, 2010