Andrew Pender v. New Jersey Department of Corrections

CourtNew Jersey Superior Court Appellate Division
DecidedJune 2, 2025
DocketA-2713-22
StatusUnpublished

This text of Andrew Pender v. New Jersey Department of Corrections (Andrew Pender v. New Jersey Department of Corrections) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Andrew Pender v. New Jersey Department of Corrections, (N.J. Ct. App. 2025).

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2713-22

ANDREW PENDER,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent. ___________________________

Submitted May 15, 2025 – Decided June 2, 2025

Before Judges Mawla and Walcott-Henderson.

On appeal from the New Jersey Department of Corrections.

Andrew Pender, appellant pro se.

Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Leo R. Boerstoel, Deputy Attorney General, on the brief).

PER CURIAM Andrew Pender, an inmate in New Jersey State Prison, appeals from a

March 27, 2023 final agency decision of the Department of Corrections (DOC)

upholding a finding of guilt as to various disciplinary charges incurred over a

two-month period, following a hearing. Pender challenges the sanctions

imposed, arguing they are excessive, arbitrary, and capricious, and a violation

of his due process rights under N.J.A.C. 10A:4-9.8(c). Perceiving no merit to

his arguments, we affirm.

On November 17, 2022, Pender was involved in a fight in the prison mess

hall. He was charged with violations under N.J.A.C. 10A:4-4.1(a) for prohibited

acts *.004 (fighting with another person) and *.306 (conduct that disrupts or

interferes with the security or orderly running of the facility). According to

Pender, "he admitted he was guilty of fighting and accepted responsibility for

his actions," with respect to this charge. Although initially charged on

November 17, 2022, Pender's disciplinary hearing did not commence until

February 2, 2023, seventy-seven days later.

Thereafter, Pender was involved in various other infractions resulting in

additional charges mostly related to his disruptive behaviors, which are set forth

in the following chart submitted by Pender with the State's consent.

A-2713-22 2 After the November 17, 2022 charge, Pender was placed on "constant

watch" for mental health monitoring but later cleared for the disciplinary hearing

process to commence on December 20, 2022. The disciplinary hearings

commenced on January 3, 2023, were adjourned until February 2, 2023, and

concluded on March 15, 2023.

At the January 3, 2023 hearing, the hearing officer initially considered the

following charges: *.253 (engaging in or encouraging a group demonstration or

A-2713-22 3 work stoppage), *.256 (refusing to obey an order of any staff member), and

*.306 (conduct that disrupts or interferes with the security or orderly running of

the correctional facility) for his refusal to exit a recreation module and for

encouraging other inmates to do the same. DOC did not pursue infractions *.253

and *.306. Due to delays in obtaining video evidence of the incident and to

allow for confrontation with the arresting officers, the hearing was delayed until

February 2, 2023. Pender was ultimately found guilty of violation *.256.

Prior to the start of the February hearing, on November 30, 2022, Pender

was charged with violation *.502 (interfering with the taking of count) for

locking his door with clothing and failing to respond to the routine inmate

attendance count. He was found guilty of violating *.502 on March 15, 2023.

On the same day, Pender was also charged with violation *.152

(destroying, altering, or damaging government property or the property of

another person), for destroying a unit phone in his cell. The first portion of the

hearing occurred on January 3, 2023, and the second portion occurred on March

15, 2023, to allow DOC time to procure the video footage and adverse witnesses.

Pender had initially requested a right to confront witnesses but later declined

that right on March 15, 2023. He was found guilty of violation *.152.

A-2713-22 4 On December 1, 2022, Pender refused to move to the rear of his housing

unit, refused to respond to the routine inmate "count" and was blocking the view

of his window. He was charged on that date with violation *.501 (failure to

stand count). Following the hearing, Pender was found guilty of this charge.

On December 2, 2022, while was being brought into an interview room,

Pender ran towards and attempted to attack mental-health doctors, resulting in a

charge of violation *.803/*.002 (attempting to commit an assault). His hearing

related to this charge was originally set for January 3, 2023, but was postponed

until February 2, 2023, to allow for time to collect video footage and to grant

his confrontation requests. He was ultimately found guilty of this prohibited act

on February 2, 2023.

On December 3, 2022, Pender was being escorted by an officer from the

nursing station when he struck the officer with his elbow and grabbed the

officer's leg. He was subsequently charged with prohibited act *.002 (assaulting

any person). The hearing on that charge also commenced on January 3, 2023,

and was completed on February 2, 2023, after a continuation to allow for the

collection and presentation of the video evidence and to consider Pender's

request to confront adverse witnesses. Because the video supported the charge,

A-2713-22 5 Pender's request for confrontation was denied. He was subsequently found

guilty of this charge.

On January 11, 2023, two separate officers witnessed Pender throw a

brown-and-yellow liquid onto an officer who was serving dinner and collecting

trash, some of which ended up in the officer's mouth. He was charged with

prohibited act *.012 (throwing bodily fluid at any person). Pender attended the

hearing for one of the charges but not the other. At the hearing he attended,

Pender requested video footage and confrontation. The hearing was delayed

from February 2, 2023 to March 22, 2023, to permit Pender access to the video

footage and witnesses. 1 DOC denied confrontation during the latter hearing, as

the video footage supported the charge. The charges were combined, and Pender

was found guilty.

On January 15, 2023, Pender grabbed a nurse's arm and attempted to pull

her through the window, as she was serving him medication. Pender stated to

the nurse "don't play me, b[****]" while laughing. He was charged with

violation *.002 (assaulting any person). He refused to attend this hearing and

was found guilty in absentia on February 2, 2023.

1 The record reflects a dispute as to the hearing date. DOC's record states March 22, 2023, while the final agency decision reflects a hearing date of March 15, 2023. A-2713-22 6 Finally, on January 19, 2023, Pender participated in a video-recorded

interview where he made explicit verbal threats towards staff, resulting in a new

charge for violating prohibited act *.005, threatening another with bodily harm.

Pender did not attend the hearing for this charge and was found guilty in absentia

On March 20, 2023, Pender, through substituted counsel, submitted an

administrative appeal, arguing: the delay in adjudicating the first charge

warranted dismissal; the aggregate sanctions imposed on all the charges violated

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