ELMER SQUARE 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NOT FOR PUBLICATION WITHOUT THE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-3937-18T3

ELMER SQUARE,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted November 18, 2020 – Decided January 27, 2021

                   Before Judges Alvarez and Sumners.

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

                   Elmer Square, appellant, pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Stephanie R. Dugger, Deputy
                   Attorney General, on the brief).

PER CURIAM
       Elmer Square, an inmate at New Jersey State Prison, appeals from the

New Jersey Department of Corrections' (DOC) March 21, 2019 final agency

determination finding him guilty of prohibited act *.005, threatening another

with bodily harm or with any offense against his or her person or his or her

property, N.J.A.C.10A:4-4.1(a)(2)(ii), and imposing sanctions of 120 days of

administrative segregation, thirty days of loss of recreation privilege, and 150

days of loss of commutation time.

       On appeal, Square argues:

             POINT I

             APPELLANT'S DUE PROCESS RIGHTS, AS SET
             FORTH IN AVANT V CLIFFORD,1 WERE
             VIOLATED WHEN THE HEARING OFFICER
             MADE FINDINGS NOT BASED ON SUFFICIENT
             CREDIBLE EVIDENCE IN THE RECORD.

             POINT II

             APPELLANT'S DUE PROCESS RIGHT TO A
             FUNDAMENTALLY FAIR HEARING BY AN
             IMPARTIAL TRIBUNAL [OR HEARING OFFICER]
             WAS VIOLATED WHEN THE HEARING OFFICER
             FAILED TO STATE ON THE RECORD HOW SHE
             MADE DETERMINATIONS OF CREDIBILITY.




1
     67 N.J. 496 (1975).
                                                                        A-3937-18T3
                                       2
We affirm because the DOC's decision was supported by substantial evidence

and the law. See R. 2:11-3(e)(1)(D).

        The essential facts, adduced before a hearing officer, were based on staff

reports, a witness statement, and a video. On March 8, 2019, Square left his

cell to go the medical clinic to get his insulin when he told Correction Officer

Z. Goodwin,2 "I'm going to fuck you up bitch." Correction Officer L. Jovanovic

claimed he heard the threat. Square denied making the comment. A surveillance

video of the incident requested by Square did not support his denial because it

lacked audio. In addition, the statement of another inmate provided that he did

not see or hear what Square said to Goodwin. After reviewing the evidence, the

hearing officer found Square guilty of prohibited act *.005.               Square's

administrative appeal was denied based upon the determination that the hearing

officer's decision was supported by "substantial evidence and the sanction[s]

[were] proportionate in view of [his] prior disciplinary history."

        Our review of an administrative agency's decision is limited.            In re

Stallworth,  208 N.J. 182, 194 (2011). We "afford[] a 'strong presumption of

reasonableness' to an administrative agency's exercise of its statutorily delegated

responsibilities." Lavezzi v. State,  219 N.J. 163, 171 (2014) (quoting City of


2
    Reports only provide the initials of the Correction Officers' first names.
                                                                            A-3937-18T3
                                          3
Newark v. Nat. Res. Council, Dep't of Env't Prot.,  82 N.J. 530, 539 (1980)).

Thus, "[w]ithout a 'clear showing' that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record, an administrative

agency's final . . . decision should be sustained, regardless of whether a

reviewing court would have reached a different conclusion in the first instance."

Circus Liquors, Inc. v. Governing Body of Middletown Twp.,  199 N.J. 1, 9

(2009).

      A finding of guilt at a disciplinary hearing must be supported by

substantial evidence. N.J.A.C. 10A:4-9.15(a). "'Substantial evidence' means

'such evidence as a reasonable mind might accept as adequate to support a

conclusion.'" Figueroa v. N.J. Dep't of Corr.,  414 N.J. Super. 186, 192 (quoting

In re Pub. Serv. Elec. & Gas Co.,  35 N.J. 358, 376 (1961)).

      We reject Square's argument that there was insufficient evidence to

sustain the finding of guilt. The hearing officer's decision was supported by two

first-hand staff reports corroborating Square's threat. Neither video footage––

without audio––nor another inmate witness supported Square's account of the

incident. Based on the substantial evidence in the record and the hearing

officer's decision, we discern no basis to disturb the DOC's finding of guilt.

      Affirmed.


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