ELMER SQUARE VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
A-3937-18T3
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