Opinion
DOCKET NO. A-3497-12T1
04-08-2015
VASIL HEISLER, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Vasil Heisler, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrew J. Sarrol, Deputy Attorney General on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from the New Jersey Department of Corrections. Vasil Heisler, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Andrew J. Sarrol, Deputy Attorney General on the brief). PER CURIAM
Vasil Heisler, an inmate currently incarcerated at New Jersey State Prison, appeals from a final disciplinary decision of the New Jersey Department of Corrections (DOC) that he committed prohibited act *.055, threatening another with bodily harm or with any offense against his or her person or his or her property, in violation of N.J.A.C. 10A:4-4.1(a). He raises the following points on appeal:
POINT ONE:Based upon our review of the record and applicable law, we reverse.
THE MANNER IN WHICH THE CHARGES WERE IMPOSED ON APPELLANT DEPRIVED HIM OF HIS ENTITLEMENTS OF DUE PROCESS BY FAILING TO NOTIFY IN VIOLATION OF N.J.A.C. 10A:4-9.8(b), AND FAILURE OF THE HEARING OFFICER TO [ALLOW APPELLANT TO] PRESENT A TIMELY DEFENSE, THEREFORE, THE ADJUDICATION AND SANCTIONS IMPOSED SHOULD BE VACATED.
POINT TWO:
THE DECISION OF THE HEARING OFFICER, AS TO A FINDING OF GUILT, IS GROSSLY UNSOUND AND UNSUPPORTED BY ANY SUBSTANTIAL EVIDENCE IN VIOLATION OF N.J.A.C. 10A:4-9.15(a), THUS THE AGENT'S ACTIONS WERE ARBITRARY AND CAPRICIOUS, AND UNREASONABLE, THEREFORE, THE ADJUDICATION SHOULD BE REVERSED.
POINT THREE:
THE HEARING OFFICER'S FAILURE TO GRANT APPELLANT THE OPPORTUNITY TO CONFRONT HIS ACCUSER, BY CROSS EXAMINATION, DEPRIVED HIM OF ENTITLEMENTS TO DUE PROCESS IN VIOLATION OF N.J.A.C. 10A:4-9.14 (a) AND (f), THUS THE ADJUDICATION SHOULD BE REVERSED
POINT FOUR:
THE MANNER IN WHICH THE APPEAL WAS HANDLED ALSO DEPRIVED APPELLANT OF HIS ENTITLEMENTS TO DUE PROCESS BY FAILURE OF THE AGENCY TO TIMELY, AND PROPERLY NOTIFY APPELLANT OF HIS APPEAL RESULTS IN VIOLATION OF N.J.A.C. 10A:4-11.7(a)(1) AND (c), THEREFORE, THE ADJUDICATION SHOULD BE REVERSED
I.
On November 25, 2012, Heisler used the inmate telephone system to talk to a male friend. During the telephone call, while referring to an unnamed female, he stated that "I'm gonna get her ass fucked up." DOC was unaware of the comment until December 14, 2012 when a member of its Special Investigation Division (SID) received information and conducted a review of the recorded telephone call. The next day, a disciplinary report was served on Heisler charging him with prohibited act *.055, threatening another with bodily harm or with any offense against his or her person or his or her property.
On December 17, 2012, a disciplinary hearing was conducted. Heisler was provided assistance of a counsel substitute and pled not guilty to the charge. The DOC played the audio recording of Heisler's telephone call and contended that Heisler had the means to carry out threat because he was a high-ranking member of a security threat group, the Bloods street gang. Heisler did not deny making the comment. Heisler claimed he was angry and his comment was not a threat. He did not present any witnesses and declined the offer to confront/cross-examine adverse witnesses. The hearing officer determined that Heisler's comment was a threat and found him guilty of *.005. Heisler was given fifteen days' detention with credit for time served, 365 days administrative segregation, 365 days loss of commutation time and 365 days loss of telephone privileges.
In his administrative appeal, Heisler sought reversal of the hearing officer's decision or in the alternative, modifications of the sanctions imposed because regulatory standards were violated and the facts were misinterpreted. Specifically, Heisler contended DOC: (1) violated N.J.A.C. 10A:4-9.2 by not serving him with a disciplinary report within 48 hours of November 25, 2012, when the alleged threat was made; (2) violated N.J.A.C. 10A:4-9.8(b) by failing to give him a hearing within seven calendar days that the alleged threat was made; and (3) did not have substantial evidence as required by N.J.A.C. 10A:4-9.15 that he committed a prohibited act.
After reviewing the disciplinary hearing record, the DOC Assistant Superintendent upheld the hearing officer's decision and sanctions, ruling administrative regulations were not violated and the audio recording confirmed that he wished to harm the woman mentioned in the recording. This appeal followed.
II.
Our review of agency action is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)(citation omitted). Substantial evidence needed to sustain guilt of an infraction is "such evidence [that] a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961)(citations omitted). We are obligated to give deference to credibility determinations made by the fact finder. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). When the administrative agency's findings of fact are supported by adequate, substantial, and credible evidence, they are binding on appeal. In re Pub. Serv. Elec. & Gas, supra, 35 N.J. at 376 (citations omitted).
We first address Heisler's contention raised in Point II that the finding that he violated *005 was not supported by the record. Specifically, he contends that his emotional outburst about the alleged victim to his friend does not constitute a threat. The DOC has not proven that the alleged victim was a party to the conversation, and has not shown she was put in fear from the comments. In response, the DOC asserts that Heisler admitted he made the remarks, and as a high ranking member of the Bloods gang, he had the means to carry the threat against the alleged victim. Under the "objective analysis" standard set forth in Jacobs v. Stephens, 139 N.J. 212 (1995), Heisler is guilty of making a threat because his words and conduct "convey a basis of fear." Id. at 224.
Based upon our review of the record we are constrained to disagree with the DOC. We recognize the DOC's concern and interest in preventing inmates from making threats against another person. However, here, the comment is not a clear unambiguous threat based upon an objective analysis required by Jacobs. In Jacobs, the inmate's comment "come on, come on I'll fuck you up" was made directly to a correctional officer he intended to threaten. Id. at 216. Heisler's comment was not made directly to the person Heisler was allegedly planning to harm. There is nothing in the record indicating the identity of Heisler's alleged victim. There is no indication that Heisler told the person he was speaking with to communicate his comments to the victim. In addition, there is no indication that Heisler directed someone to harm the alleged victim. Accordingly, as the record does not contain substantial credible evidence to support the decision disciplining Heisler, we reverse it. Henry, supra, 81 N.J. at 579.
We also note that the DOC considered facts which were irrelevant to finding a *.005 violation in this situation. The DOC's decision relies, in substantial part, on the finding that Heisler is a gang member and is therefore in a position to have the subject of his comment harmed. In deciding whether a *.005 violation occurred here, there was no reason to consider whether Heisler was capable of carrying out a threat. Such analysis introduced a fact irrelevant to the decision making process. Threatening words that are punishable under *.005, not the ability to carry them out. Id. at 224.
As a result of concluding there is no credible evidence that Heisler violated *.005, the alleged procedural violations lack merit.
We reverse and vacate the sanction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION