                                NOT FOR PUBLICATION WITHOUT THE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-3591-18T4

ALEXEI LEGASSOV,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted April 21, 2020 – Decided May 13, 2020

                   Before Judges Yannotti and Firko.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Alexei Legassov, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Donna Arons, Assistant Attorney General,
                   of counsel; Travis M. Anderson, Deputy Attorney
                   General, on the brief).

PER CURIAM
      Alexei Legassov appeals from a final decision of the New Jersey

Department of Corrections (NJDOC), which found that he committed prohibited

acts .210 and *.153, in violation of N.J.S.A. 10A:4-4.1(a), and upheld the

sanctions imposed by the departmental hearing officer. We affirm.

      Legassov is an inmate in the State's correctional system. In February

2019, he was incarcerated at East Jersey State Prison (EJSP). On February 10,

2019, Officer Froehlich conducted a routine search of Legassov's cell.

Froehlich found and confiscated three twenty-four-ounce bottles, one twelve-

ounce bottle, and four V-8 juice bottles, which were hanging near the window.

      According to Froehlich, the bottles were filled with a cloudy substance

and pieces of fruit. The officer reported that the substance had a "strong, sweet

[and] pungent smell." Froehlich also discovered and confiscated a large bag

weighing about two pounds, which was filled with packets of sugar.

      Legassov was charged with committing prohibited act *.551, making

intoxicants, alcoholic beverages, or prohibited substances.1 Legassov also was

charged with committing prohibited act *.153, stealing. On February 11, 2019,

Legassov received notice of the charges. A corrections officer investigated the



1
  Prohibited acts that are preceded by an asterisk (*) "are considered the most
serious and result in the most severe sanctions . . ." N.J.A.C. 10A:4-4.1(a).
                                                                         A-3591-18T4
                                       2
charges and referred the matter for further proceedings before a departmental

hearing officer.

      The hearing took place on February 11, 2019. Legassov requested and

was granted the assistance of a counsel substitute. Counsel substitute requested

that the *.551 charge be reduced to a .210 charge, possession of anything not

authorized for retention or receipt by an inmate or not issued to the inmate

through regular correctional facility channels. Legassov pled guilty to the .210

charge and not guilty to the *.153 charge, stealing.

      The hearing officer found Legassov guilty of committing prohibited act

*.153. The hearing officer noted that Legassov claimed he obtained the sugar

packets from the cafeteria and pointed out that he had almost two pounds of

sugar in his cell. The hearing officer stated that inmates are only given two to

four packets of sugar at a time. Moreover, Legassov admitted that he did not

receive permission to bring the sugar back to his cell.

      The hearing officer found that Legassov could not have obtained the

amount of sugar that he possessed by taking two to four packets of sugar at a

time from the cafeteria within a week's time. The hearing officer also observed

that while an inmate may obtain sugar from the prison's canteen, sugar acquired




                                                                        A-3591-18T4
                                        3
in this manner is not provided in packets.       The hearing officer stated that

Legassov's possession of the sugar was excessive and unsanitary.

      In addition, the hearing officer found Legassov guilty of committing

prohibited act .210. The hearing officer noted that Legassov had numerous

bottles in his cells. The bottles labeled for V-8 juice were filled with liquids

other than juice, and the oral hygiene bottles found in Legassov's cell were filled

with something other than mouthwash.

      The hearing officer found that Legassov was not authorized to possess the

substances in the bottles. The hearing officer stated that Legassov must follow

the prison's rules and regulations, and he could not put "whatever he wants in

bottles designated for other items." The hearing officer also stated that inmates

must be held accountable "for putting themselves [and] others at risk" of

unsanitary and unhealthy conditions.

      The hearing officer combined the .210 charge with the *.153 charge for

purposes of determining the sanctions to impose. The hearing officer imposed

the following sanctions: ninety-five days of administrative segregation, the loss

of ninety-five days of commutation time, and the loss of fifteen days of

recreational privileges.




                                                                           A-3591-18T4
                                        4
      Legassov filed an administrative appeal.       He contended there was

insufficient evidence to support the finding that he stole the sugar found in his

cell. Legassov claimed the hearing officer had misinterpreted the facts. He

asserted inmates are not prohibited from taking sugar from the inmates' dining

room, and he did not need permission to take the sugar back to his cell since it

is part of the meals provided. He said he obtained some of the sugar packets

from other inmates, which was permissible. In addition, he asserted that the

sanctions imposed were not warranted. He stated that the sanctions are unjust

and unfair.

      On February 12, 2019, Calvin L. Spires, Assistant Superintendent at EJSP,

issued a final decision upholding the hearing officer's decision. He found there

were no violations of the applicable disciplinary standards and that the hearing

officer had not misinterpreted the facts. He also found that the sanctions that

the hearing officer imposed were "proportionate" to the violations and leniency

was not warranted. This appeal followed.

      On appeal, Legassov raises the following arguments:

              POINT I
              THE [NJDOC'S] HEARING OFFICER FAILED TO
              TAKE INTO ACCOUNT [THAT] INMATES ARE
              GIVEN MORE THAN [TWO] TO [FOUR] PACKETS
              OF SUGAR DURING THE MESS MOVEMENTS
              AND INMATES WHO [DO NOT] WANT THEIR

                                                                         A-3591-18T4
                                       5
            SUGAR MAY DISPERSE THEIR SUGAR TO
            OTHER INMATES.

            POINT II
            THE HEARING OFFICER ERRED IN THE
            MODIFICATION OF THE CHARGE BECAUSE
            THERE WAS NO EVIDENCE OF MAKING
            INTOXICANTS AND THE FINDING OF GUILTY
            AS TO THE .210 [CHARGE] IS DUPLICATIVE OF
            THE *.153 CHARGE.

            POINT III
            THE HEARING OFFICER ERRED IN THE FINDING
            OF GUILT BECAUSE THE APPELLANT WAS NOT
            THE     INDIVIDUAL   LISTED    ON    THE
            DISCIPLINARY REPORT.

      Judicial review of final decisions of an administrative agency is "severely

limited." George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27

(1994) (citing Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J.

384, 390 (1983)). The court can "intervene only in those rare circumstances in

which an agency action is clearly inconsistent with its statutory mission or with

other State policy." Ibid.

      In an appeal from a final decision of the NJDOC in a prisoner disciplinary

matter, we consider whether there is substantial evidence in the record to support

the NJDOC's decision that the inmate committed the prohibited act and whether,

in making that decision, the NJDOC followed the departmental regulations

governing the disciplinary process, which were adopted to afford the inmates

                                                                          A-3591-18T4
                                        6
procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995);

Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995).

      Legassov argues that the NJDOC erred by finding that he committed

prohibited acts *.153 and .210. We disagree. Here, the hearing officer found

that Legassov did not obtain permission to remove sugar packets from the dining

hall, or permission to store a large quantity of sugar packets in his cell. The

hearing officer also found that Legassov was not authorized to possess or retain

the bottles with the milky substance that were found in his cell. There is

sufficient evidence in the record to support these findings.

      Legassov also contends the hearing officer erred by modifying the *.551

charge to a charge of violating .210. He argues there was no evidence that he

was making intoxicants and the .210 charge was duplicative of the *.551 charge.

Again, we disagree.

      The NJDOC's regulations provide in pertinent part that, "[w]henever it

becomes apparent at a disciplinary hearing that an incorrect prohibited act is

cited in the disciplinary report but that the inmate may have committed another

prohibited act, the Adjustment Committee or Disciplinary Hearing Officer shall

modify the charge. . . ." N.J.A.C. 10A:4-9.16(a).




                                                                        A-3591-18T4
                                        7
      The record shows that at the disciplinary hearing, Legassov's counsel

substitute asked the hearing officer to modify the charge from *.551 to .210.

The hearing officer did not err by modifying the charge because the .210 charge

was appropriate and there was sufficient evidence to support the charge.

Moreover, the .210 charge was not duplicative of the *.551 charge. The charge

of stealing the sugar was separate and distinct from the charge pertaining to the

unauthorized possession of the liquid substances found in Legassov's cell.

      Legassov further contends that the NJDOC's decision should be reversed

because in the Assistant Superintendent's decision, he is referred to by another

name. It is clear, however, that this was a typographical error. The final

decision states that the appeal is by Inmate No. 1161941, which is Legassov's

inmate number. Furthermore, the Assistant Superintendent's decision indicates

he is responding to Legassov's administrative appeal, not the appeal of another

inmate.

      Affirmed.




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