NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2178-22
HASSAN SLY,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. __________________________
Submitted February 26, 2024 – Decided May 3, 2024
Before Judges Gilson and Berdote Byrne.
On appeal from the New Jersey Department of Corrections.
Hassan Sly, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for respondent (Sara M. Gregory, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
PER CURIAM Appellant Hassan Sly, an inmate at the East Jersey State Prison, appeals
from a final administrative agency decision of the New Jersey Department of
Corrections (DOC) upholding a disciplinary hearing officer's finding that he
committed four prohibited acts and the imposition of sanctions. Appellant
argues there was no substantial, credible evidence in the record to support the
findings. After reviewing the record in light of the governing legal principles,
we affirm.
I.
We discern the following from the record. On August 14, 2022,
appellant was delivering food trays to other inmates during his morning shift
as a kitchen worker. After entering a housing unit, Officers Sorrell and Castro
heard another inmate call out to appellant, asking him to go up the stairs.
Castro called out to appellant, ordering him to return to the officers' desk
within the unit. Appellant did not immediately return and continued up the
stairs. Upon his return, the officers questioned him regarding what he was
doing upstairs and whether he heard the directive to return, which he denied
hearing.
The officers then ordered appellant to turn around and place his hands on
his head so they could frisk him and check for contraband. Appellant initially
A-2178-22 2 complied, but during the pat down he turned toward Sorrell, who was frisking
him. This prompted Sorrell to "take [appellant] down" to the ground and call
for emergency assistance from other officers. Other officers arrived and
assisted Sorrell in handcuffing and escorting appellant out of the unit. The
incident was video-recorded and submitted into evidence.
In his written statement made after the incident, Sorrell reported "in the
beginning [appellant] was compliant with my orders. I retrieved a yellow
piece of paper out of his pocket, attempting to search his other side/pocket . . .
is when [appellant] turned towards me in the middle of the pat down, and I
immediately took him down . . . ." Appellant was charged, in violation of
N.J.A.C. 10A:4-4.1(a), with attempted assault, *.803/.002, refusal to submit to
a search, *.708, failure to comply with a written rule or regulation of the
correctional facility, *.709, and engaging in conduct which disrupts or
interferes, *.306.
A corrections sergeant investigated the incident and referred the charges
to a disciplinary hearing officer. Appellant requested and was afforded the
assistance of a counsel substitute during the hearing, N.J.A.C. 10A:4-9.12(a).
He pleaded not guilty to the charges, contending he did not resist the officers,
did not refuse the search, and only turned his head toward the officer to inform
A-2178-22 3 him he was experiencing pain caused by the officer's elbow on his back during
the pat down. He also provided the hearing officer with a written statement
denying he resisted.
During the hearing, appellant was offered the opportunity to call
witnesses, cross-examine adverse witnesses, and review video footage but
declined. The evidence presented at the hearing consisted of a video,1 thirty-
one reports and documents, including numerous officers' statements, and
appellant's written statement. Both Sorrell and Castro provided corroborative
written reports stating appellant turned toward Sorrell during the pat down and
was immediately put on the ground before Sorrell called for assistance on the
radio.
The hearing officer reviewed the submitted documentation and a video
of the incident and summarized the evidence as follows:
[Appellant] states he turned his head during the search. The C/O stated he was non-compliant & attempted to resist & assault him during the search. The inmate stated he was in pain & was turning around to tell the C/O. He did not call out to the officer. The C/O felt the inmate was attempting to assault him & tried to take the inmate down. The inmate resisted the take down & a code was called. The [appellant] said he did not resist but the video
1 The video was not provided on appeal.
A-2178-22 4 clearly shows [him] resisting & several officers having to get involved.
The hearing officer found appellant guilty of the charges. As a result of
the violations, appellant received sanctions, including one year in the
restorative housing unit, one year loss of commutation time, thirty days loss of
recreational privileges, and thirty days loss of email, J-Pay, telephone, tablet,
radio, television, and canteen privileges.
Appellant administratively appealed the decision. The assistant
superintendent upheld the hearing officer's decision and concluded the
sanctions were proportionate to the offenses. This appeal followed.
II.
The scope of our review is limited. Malacow v. N.J. Dep't of Corr., 457
N.J. Super. 87, 93 (App. Div. 2018). As a general matter, "[w]e will disturb an
agency's adjudicatory decision only upon a finding that the decision is
'arbitrary, capricious or unreasonable,' or is unsupported 'by substantial
credible evidence in the record as a whole.'" Blanchard v. N.J. Dep't of Corr.,
461 N.J. Super. 231, 237-38 (App. Div. 2019) (quoting Henry v. Rahway State
Prison, 81 N.J. 571, 579-80 (1980)); see also N.J.A.C. 10A:4-9.15(a).
"Substantial evidence has been defined alternatively as 'such evidence as a
reasonable mind might accept as adequate to support a conclusion,' and
A-2178-22 5 'evidence furnishing a reasonable basis for the agency's action.'" Id. at 238
(quoting Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div.
2010)).
When reviewing a prison disciplinary matter, we also consider whether
the DOC followed the regulations adopted to afford an inmate procedural due
process. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v.
Stephens, 139 N.J. 212, 220-22 (1995). Admittedly, "[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of
rights due [to] a defendant in such proceedings does not apply." Jenkins v.
Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v. McDonnell, 418 U.S.
539, 556 (1974)). However, the inmate's more limited procedural rights,
initially set forth in Avant v. Clifford, 67 N.J. 496, 525-46 (1975), are codified
in a comprehensive set of DOC regulations. See N.J.A.C. 10A:4-9.1 to -9.28.
Those rights include an inmate's entitlement to a limited right to confront and
cross-examine adverse witnesses, N.J.A.C. 10A:4-9.14, the opportunity to call
Free access — add to your briefcase to read the full text and ask questions with AI
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-2178-22
HASSAN SLY,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. __________________________
Submitted February 26, 2024 – Decided May 3, 2024
Before Judges Gilson and Berdote Byrne.
On appeal from the New Jersey Department of Corrections.
Hassan Sly, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for respondent (Sara M. Gregory, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
PER CURIAM Appellant Hassan Sly, an inmate at the East Jersey State Prison, appeals
from a final administrative agency decision of the New Jersey Department of
Corrections (DOC) upholding a disciplinary hearing officer's finding that he
committed four prohibited acts and the imposition of sanctions. Appellant
argues there was no substantial, credible evidence in the record to support the
findings. After reviewing the record in light of the governing legal principles,
we affirm.
I.
We discern the following from the record. On August 14, 2022,
appellant was delivering food trays to other inmates during his morning shift
as a kitchen worker. After entering a housing unit, Officers Sorrell and Castro
heard another inmate call out to appellant, asking him to go up the stairs.
Castro called out to appellant, ordering him to return to the officers' desk
within the unit. Appellant did not immediately return and continued up the
stairs. Upon his return, the officers questioned him regarding what he was
doing upstairs and whether he heard the directive to return, which he denied
hearing.
The officers then ordered appellant to turn around and place his hands on
his head so they could frisk him and check for contraband. Appellant initially
A-2178-22 2 complied, but during the pat down he turned toward Sorrell, who was frisking
him. This prompted Sorrell to "take [appellant] down" to the ground and call
for emergency assistance from other officers. Other officers arrived and
assisted Sorrell in handcuffing and escorting appellant out of the unit. The
incident was video-recorded and submitted into evidence.
In his written statement made after the incident, Sorrell reported "in the
beginning [appellant] was compliant with my orders. I retrieved a yellow
piece of paper out of his pocket, attempting to search his other side/pocket . . .
is when [appellant] turned towards me in the middle of the pat down, and I
immediately took him down . . . ." Appellant was charged, in violation of
N.J.A.C. 10A:4-4.1(a), with attempted assault, *.803/.002, refusal to submit to
a search, *.708, failure to comply with a written rule or regulation of the
correctional facility, *.709, and engaging in conduct which disrupts or
interferes, *.306.
A corrections sergeant investigated the incident and referred the charges
to a disciplinary hearing officer. Appellant requested and was afforded the
assistance of a counsel substitute during the hearing, N.J.A.C. 10A:4-9.12(a).
He pleaded not guilty to the charges, contending he did not resist the officers,
did not refuse the search, and only turned his head toward the officer to inform
A-2178-22 3 him he was experiencing pain caused by the officer's elbow on his back during
the pat down. He also provided the hearing officer with a written statement
denying he resisted.
During the hearing, appellant was offered the opportunity to call
witnesses, cross-examine adverse witnesses, and review video footage but
declined. The evidence presented at the hearing consisted of a video,1 thirty-
one reports and documents, including numerous officers' statements, and
appellant's written statement. Both Sorrell and Castro provided corroborative
written reports stating appellant turned toward Sorrell during the pat down and
was immediately put on the ground before Sorrell called for assistance on the
radio.
The hearing officer reviewed the submitted documentation and a video
of the incident and summarized the evidence as follows:
[Appellant] states he turned his head during the search. The C/O stated he was non-compliant & attempted to resist & assault him during the search. The inmate stated he was in pain & was turning around to tell the C/O. He did not call out to the officer. The C/O felt the inmate was attempting to assault him & tried to take the inmate down. The inmate resisted the take down & a code was called. The [appellant] said he did not resist but the video
1 The video was not provided on appeal.
A-2178-22 4 clearly shows [him] resisting & several officers having to get involved.
The hearing officer found appellant guilty of the charges. As a result of
the violations, appellant received sanctions, including one year in the
restorative housing unit, one year loss of commutation time, thirty days loss of
recreational privileges, and thirty days loss of email, J-Pay, telephone, tablet,
radio, television, and canteen privileges.
Appellant administratively appealed the decision. The assistant
superintendent upheld the hearing officer's decision and concluded the
sanctions were proportionate to the offenses. This appeal followed.
II.
The scope of our review is limited. Malacow v. N.J. Dep't of Corr., 457
N.J. Super. 87, 93 (App. Div. 2018). As a general matter, "[w]e will disturb an
agency's adjudicatory decision only upon a finding that the decision is
'arbitrary, capricious or unreasonable,' or is unsupported 'by substantial
credible evidence in the record as a whole.'" Blanchard v. N.J. Dep't of Corr.,
461 N.J. Super. 231, 237-38 (App. Div. 2019) (quoting Henry v. Rahway State
Prison, 81 N.J. 571, 579-80 (1980)); see also N.J.A.C. 10A:4-9.15(a).
"Substantial evidence has been defined alternatively as 'such evidence as a
reasonable mind might accept as adequate to support a conclusion,' and
A-2178-22 5 'evidence furnishing a reasonable basis for the agency's action.'" Id. at 238
(quoting Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div.
2010)).
When reviewing a prison disciplinary matter, we also consider whether
the DOC followed the regulations adopted to afford an inmate procedural due
process. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v.
Stephens, 139 N.J. 212, 220-22 (1995). Admittedly, "[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of
rights due [to] a defendant in such proceedings does not apply." Jenkins v.
Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v. McDonnell, 418 U.S.
539, 556 (1974)). However, the inmate's more limited procedural rights,
initially set forth in Avant v. Clifford, 67 N.J. 496, 525-46 (1975), are codified
in a comprehensive set of DOC regulations. See N.J.A.C. 10A:4-9.1 to -9.28.
Those rights include an inmate's entitlement to a limited right to confront and
cross-examine adverse witnesses, N.J.A.C. 10A:4-9.14, the opportunity to call
witnesses and evidence, N.J.A.C. 10A:4-9.13, and, in certain circumstances,
the assistance of counsel substitute, N.J.A.C. 10A:4-9.12. These regulations
"strike the proper balance between the security concerns of the prison, the need
for swift and fair discipline, and the due-process rights of the inmates."
A-2178-22 6 Williams v. Dep't of Corr., 330 N.J. Super. 197, 203 (2000) (citing McDonald,
139 N.J. at 202).
Applying these principles, we are satisfied there was substantial credible
evidence in the record to support the findings and sanctions. Sorrell and
Castro's reports indicate appellant was directed to return to the officers' desk
but failed to comply. Upon his return, he was told to submit to a pat down.
They noted although appellant initially complied, he turned towards Sorrell
before the pat down was completed. All officers who assisted in subduing
appellant reported he was resisting while on the ground when they attempted
to handcuff him. Lastly, video evidence supports the finding appellant
resisted.
As the fact finder, the hearing officer was permitted to consider the
reports as evidence and rely on the examination of physical evidence.
N.J.A.C. 1:1-15.1. The hearing officer relied on the numerous corroborative
reports and on video evidence of the interaction for corroboration. The only
contrary evidence offered was the testimony of appellant. We discern no basis
to disturb these findings and conclude the sanctions imposed are consistent
with DOC regulations.
Affirmed.
A-2178-22 7