GREGORY BUTLER 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NOT FOR PUBLICATION WITHOUT THE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-3711-10T2

GREGORY BUTLER,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_____________________________________________________

December 28, 2011

Submitted December 13, 2011 - Decided

Before Judges Fisher and Nugent.

On appeal from the New Jersey Department of Corrections.

Gregory Butler, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Gregory Butler, a prison inmate, appeals a final decision of the Department of Corrections imposing disciplinary sanctions as a result of a determination that appellant engaged in prohibited act *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, and prohibited act *.002, assaulting any person, in violation of N.J.A.C. 10A:4-4.1(a). In this appeal, appellant argues he was denied a fair hearing because the evidence offered against him was insufficient to support the charges. We disagree and affirm.

The record reveals that on January 17, 2011, another inmate, Rahgeam Jenkins, was observed with a four-inch laceration across his left check. When questioned, Jenkins said he fell and cut his face on the edge of a cabinet. Department staff, however, found no blood on the bookshelf. A few days later, an anonymous note was found that asserted the assailants were "Rasta" and "Shocka"; "Rasta" was described in the note as "the old guy with the dread lots [sic]." Appellant is known as "Rasta" and fit the description given. In addition, a telephone call in which one of the speakers was a witness to the assault on Jenkins was recorded by the Department; the witness, whose identity was not revealed to appellant for security reasons, identified one of the assailants as "about 60-70 years old" and "a Jamaican guy," descriptions that fit appellant.

Prior to the hearing, appellant requested that a statement be taken from Jenkins. Jenkins was interviewed and again stated he fell and hit the left side of his face on the edge of a cabinet.

A paralegal assigned to assist appellant at the hearing argued that the anonymous note and the report summarizing the content of the telephone call were neither credible nor reliable. The hearing officer rejected appellant's arguments and found he committed the assault on Jenkins. The Department upheld the hearing officer's findings and imposition of sanctions. In appealing to this court, appellant argues in a single point:

APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL HEARING. WHEN EVIDENCE USED AGAINST HIM WAS [ACCEPTED] WITH NO PROOF, EXCEPT THE WORD OF AN INMATE WHO WROTE A NOTE AND WHO OFFICIALS CLAIMED TALKED ABOUT IT ON THE TELEPHONE TO A FAMILY MEMBER[].

We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). We add only the following brief comments.

Our review of this final agency decision is limited. We will reverse such a determination only if it is arbitrary, capricious or unreasonable, or when unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). This standard precludes our own weighing of the evidence, De Vitis v. N. J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985), and requires deference to matters falling within the agency's expertise, In re Vineland Chem. Co., 243 N.J. Super. 285, 309 (App. Div.), certif. denied, 127 N.J. 323 (1990).

Appellant has forcefully argued that the evidence marshaled against him was insufficient to warrant a finding that he committed the assault. Applying the standard of review briefly described above, however, it is not for this court to weigh the evidence adduced at the hearing. To the contrary, we are required to defer to findings that are supported by the record. In complying with this standard, we are constrained to reject appellant's contentions regarding the weight or sufficiency of the evidence.

Affirmed.