Opinion
DOCKET NO. A-5920-13T2
07-25-2016
STEPHEN SULLIVAN, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Stephen Sullivan, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Sumners. On appeal from the New Jersey Department of Corrections. Stephen Sullivan, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Stephen Sullivan, currently an inmate at New Jersey State Prison, challenges the August 12, 2014 final decision of the New Jersey Department of Corrections (DOC), that he committed prohibited act *.002, assaulting any person, N.J.A.C. 10A:4-4.1(a), and imposed sanctions. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
On August 5, 2014, it was reported to Bayside State Prison (BSP) correctional officers that an inmate was assaulted in the E-unit of the prison. Shortly thereafter, the Special Investigations Division (SID) discovered that the victim was Joseph Asfor, who could not walk due to severe swelling and bruising to his face, head, back, and stomach. A search of inmates housed in E-unit revealed that Sullivan had fresh injuries to his right hand indicative of assaultive behavior. No other inmate had similar injuries. Sullivan claimed that the injuries occurred earlier that day while working in the prison law library, not from assaulting Asfor. However, two inmates, whose names were not disclosed, provided statements that they witnessed Sullivan and inmate Raymond Sally assault Asfor. During the attack, Asfor was allegedly accused of being a child sex offender.
Sullivan was issued a disciplinary charge for prohibited act *.002, assaulting any person. The charge was found to have merit and a hearing was conducted on August 11. Sullivan's request for assistance of a counsel substitute was granted. He claimed that he did not know Asfor and did not assault him. Sullivan also contended that he helped sex offenders at the law library. He did not present any witnesses nor request to confront and cross-examine any witnesses. Additional evidence considered by the hearing officer included medical reports of Sullivan and Asfor, photos of Asfor's injuries, and SID disciplinary reports, including confidential witnesses' statements, which were not disclosed to Sullivan in order to protect the witnesses' safety. At the close of evidence, the hearing officer found Sullivan guilty of the *.002 charge and sanctioned him to 10 days detention, 365 days administrative segregation, and 365 days loss of commutation time.
On August 11, Sullivan filed an administrative appeal. The next day, the guilty finding and sanctions were upheld. This appeal followed.
Our review of agency action is limited. Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182 (App. Div. 2011) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)). Decisions of administrative agencies carry with them a "presumption of reasonableness." Lisowski v. Borough of Avalon, 442 N.J. Super. 304, 330 (App. Div. 2015) (quoting Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980), cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). We reverse an agency's decision only when it is "arbitrary, capricious, or unreasonable," or unsupported by substantial credible evidence. In re Herrmann, 192 N.J. 19, 27-28 (2007).
"A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). When reviewing a DOC prison discipline decision, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the DOC followed the regulations adopted to afford inmates due process. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).
"Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990). Thus, we may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis, supra, 202 N.J. Super. at 489.
However, "although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)). We are not "relegated to a mere rubber-stamp of agency action," but rather we must "engage in a 'careful and principled consideration of the agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (citations omitted).
Before us, Sullivan contends that the guilty adjudication was not based on substantial evidence in the record but solely on the unsubstantiated claims of confidential informants whose credibility was not established. He also argues this violated his due process rights because he was not given an opportunity to confront his accusers. We disagree.
Prison disciplinary hearings are not entitled to the same spectrum of rights afforded to a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975) (citation omitted). When a hearing officer relies on confidential evidence in finding an inmate guilty, the adjudication shall contain:
i. A concise summary of the facts on which the Disciplinary Hearing Officer . . .
concluded that the informant was creditable or his or her information reliable; and
ii. The informant's statement (either in writing or as reported) in language that is factual rather than a conclusion, and based on the informant's personal knowledge of the matters contained in such statement.
[N. J.A.C. 10A:4-9.15(b)(1)(i)-(ii).]
The record before us demonstrates that the hearing officer based her decision upon substantial evidence and adhered to procedures concerning the reliance upon confidential evidence. She provided a concise factual summary of the confidential statements of two witnesses that they saw Sullivan and Sally assault Asfor, and that their statements were corroborated by documented injuries to Sullivan's hand.
Sullivan next claims that the hearing officer did not investigate his contention when initially questioned by SID that he injured his hand while working at the law library. The hearing officer has the authority to conduct a further investigation "where he [or] she is of the opinion that the [disciplinary] report is not properly made out or the facts and circumstances are not sufficient to set forth a basic understanding of the incident." N.J.A.C. 10A:4-9.6. There is nothing in the record to indicate that Sullivan requested that the hearing officer conduct a further investigation. Moreover, there is no showing that a further investigation was necessary given that the investigation reports were properly written with a basic understanding of the incident set forth therein. We are satisfied, therefore, that Sullivan's argument that the investigation was faulty is without merit.
Sullivan also claims that the hearing officer did not investigate Sally's statement at Sally's disciplinary hearing for the same charge that Sally acted alone in assaulting Asfor. Given that the same hearing officer conducted Sally's disciplinary hearing, it is obvious that the hearing officer was aware of Sally's exoneration of Sullivan, and there was no need to conduct a further investigation to obtain a better understanding of the incident. Further, there is no showing that Sullivan relied upon the statement as a defense at his disciplinary hearing. Moreover, there was substantial credible evidence that Sullivan assaulted Asfor.
Sullivan likewise argues that the administrator at his administrative appeal should have ordered a further investigation concerning his work-related hand injury claim. Sullivan cites N.J.A.C. 10A:4-11.4(a), which provides "the [a]dministrator or designee may order an independent investigation of the [disciplinary] charge . . . in those instances in which the inmate's appeal and information furnished after the initial disciplinary hearing appear to warrant such action." (emphasis added). Based upon the record showing credible evidence that Sullivan assaulted Asfor, we cannot conclude that the administrator abused her discretion in failing to further investigate Sullivan's hand injury claim.
In addition, Sullivan contends that the administrator violated his due process rights by completely ignoring his claims in reviewing his appeal. We disagree. The hearing officer gave a concise summary of the evidence considered and a reasoned explanation for finding Sullivan guilty of prohibited act *.002. See Blackwell, supra, 348 N.J. Super. at 122-23 (citations omitted) (recognizing that an agency must "set forth its rationale in support of a final determination"). The administrative appeal disposition states that "[t]he decision of the [h]earing [o]fficer is upheld" and "[n]o leniency will be afforded to you." Accordingly, by referring to the hearing officer's decision, the agency has satisfied the requirements of the adjudicatory process.
Lastly, Sullivan raises concerns over the adjudication report which details what occurred at the disciplinary hearing. He argues that counsel substitute failed to insure that the report accurately reflected his assertion at the hearing that his hand injury was work-related and could be verified by the accident report. He also maintains that his copy of the adjudication report was illegible. Neither argument has merit.
Where an inmate charged with an asterisk offense receives assistance from a counsel substitute who is not "sufficiently competent," due process protections have been effectively denied. Avant, supra, 67 N.J. at 529. Here, Sullivan has not established a specific manner in which counsel substitute fell below acceptable standards that affected the outcome of the proceedings. The hearing officer was aware of Sullivan's contention that his hand was injured at the law library because it was mentioned in the investigation report. Since we have concluded that the DOC's decision was based upon sufficient evidence, we find that Sullivan is not entitled to relief based upon a claim of ineffective assistance of counsel substitute.
As for the alleged illegible copy of the adjudication report given to Sullivan by the DOC, the argument is not properly before this court because he failed to raise it below, and it does not involve an issue of jurisdiction or matter of public concern. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted). Additionally, the legibility of the report is not relevant to this appeal because there is no indication that Sullivan sought a more legible copy and that his appeal rights were affected by the copy he received.
In sum, given our deferential standard of review, we find no basis to disturb the agency's decision, as we are satisfied that both the hearing officer's decision and the DOC's ultimate determination are sufficiently grounded on substantial credible evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION