Opinion
DOCKET NO. A-3773-12T4
04-08-2015
GERALD LOVELACE, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Gerald Lovelace, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from the New Jersey Department of Corrections. Gerald Lovelace, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief). PER CURIAM
Gerald Lovelace appeals from a final determination of the New Jersey Department of Corrections (DOC) that upheld a hearing officer's finding that, while an inmate at South Woods State Prison, he committed prohibited act *.803/*.003, attempting to assault any person with a weapon, in violation of N.J.A.C. 10A:4-4.1. We reverse.
On October 6, 2012, a corrections officer observed Lovelace wearing a wedding band on his left ring finger following a visit with his wife. Because Lovelace had not been authorized by the DOC to have possession of the ring in prison, another officer requested he turn over the ring to her. According to the officer, Lovelace removed the ring and threw it at her.
On October 6, 2012, Lovelace was charged with prohibited act *.803/*.003, as well as .210, possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels. Lovelace was served with the notice of these charges on October 8, 2012, and the hearing took place on October 11, 2012.
At the hearing, at which he was represented by counsel substitute, Lovelace pled not guilty to prohibited act *.803/*.003, but did plead guilty to .210. He declined to make a statement at the hearing. Based upon the officers' statements, the hearing officer found Lovelace guilty of prohibited act *.803/*.003, and imposed fifteen days of detention; sixty days loss of commutation time, suspended for sixty days; ninety days of administrative segregation, suspended for sixty days; and confiscation of the ring.
In his notice of appeal, Lovelace indicates he is appealing the finding he committed prohibited act .210, as well as a finding on March 1, 2013, that he violated .254, refusing to work or accept a program or housing unit assignment. Because Lovelace does not address these two findings in his brief, his appeal of these findings are deemed waived. See N.J. Dep't of Envtl. Prot. v. Alloway Twp. & Salem, 438 N.J. Super. 501, 505 n.2 (App. Div. 2015) (citing Fantis Foods v. N. River Ins. Co., 332 N.J. Super. 250, 266-67 (App. Div. 2000)).
On January 2, 2013, Lovelace filed an administrative appeal. The assistant superintendent upheld the hearing officer's decision on the ground the appeal was untimely. See N.J.A.C. 10A:4-11.1(a) (appeal of disciplinary decision must be filed within forty-eight hours from the receipt of decision).
Lovelace raises the following arguments for our consideration.
POINT I - THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE IT IS BASED ON PROCEEDINGS THAT VIOLATED APPELLANT'S DUE PROCESS RIGHTS.
(a) THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE DECISION
(b) ILLITERATE PRISONERS RIGHTS
(c) NO VALID RULE OR REGULATION PROHIBITS
Our scope of review is limited to determining whether the DOC's action was arbitrary, capricious or unsupported by sufficient credible evidence in the record. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The record before the DOC must contain "substantial" evidence to support a finding of guilt. Jacobs v. Stephens, 139 N.J. 212, 222-23 (1995); Avant v. Clifford, 67 N.J. 496, 530 (1975).
However, when an agency's decision is based upon an "agency's interpretation of a statute or its determination of a strictly legal issue," we are not bound by the agency's interpretation. In re Taylor, supra, 158 N.J. at 658. "Statutory interpretation involves the examination of legal issues and is, therefore, a question of law subject to de novo review." Saccone v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (citing McGovern v. Rutgers, 211 N.J. 94, 107-08 (2012); Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011); State v. Gandhi, 201 N.J. 161, 176 (2010)).
Here, Lovelace was found guilty of attempting to assault another with a weapon because he threw his wedding band at the corrections officer. Under N.J.A.C. 10A:1-2.2, a weapon "means anything readily capable of lethal use or of inflicting serious bodily injury." The term weapon includes, but is not limited to:
1. All firearms, even though not loaded or lacking a clip or other component to render them immediately operable;
2. All components that can be readily assembled into a weapon;
3. All gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded in wood;
4. All stun guns; and
5. Any weapon or other device, which projects, releases, or emits a compressed gas or tear gas or any other substance or electrical signal intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air (see N.J.S.A. 2C:39-1).
[N.J.A.C. 10A:1-2.2.]
First, a wedding band does not fall within any of the above definitions of a weapon. Second, while there may be some rare and extraordinary circumstance in which a wedding band is capable of being converted into a weapon, such an object is not readily capable of lethal use or of inflicting serious bodily injury, and our research has not disclosed a case where a wedding band was found to be a weapon. Third, there was no finding let alone any analysis made by the hearing officer that Lovelace's ring was a weapon as defined by N.J.A.C. 10A:1-2.2.
Because Lovelace did not attempt to assault another with a weapon, the hearing officer erred by finding he committed prohibited act *.803/*.003.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION