                                NOT FOR PUBLICATION WITHOUT THE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-4849-16T2

SHAKEY NORMAN,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
______________________________

                    Submitted December 12, 2018 – Decided December 31, 2018

                    Before Judges Vernoia and Moynihan.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Shakey Norman, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Erica R. Heyer, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Shakey Norman appeals from a New Jersey Department of Corrections'

(DOC) final agency decision finding him guilty of committing prohibited act

*.005, threatening another with bodily harm, in violation of N.J.A.C. 10A:4-

4.1(a)(2)(ii).   We are convinced the DOC's decision is not supported by

substantial credible evidence and reverse.

      Norman is serving a ten-year sentence for robbery and is an inmate at

Northern State Prison. In May 2017, a DOC nurse reported to the DOC Special

Investigations Division (SID) that Norman sent a letter to her at her home. The

nurse further reported that she "only knew [Norman] from [the] medication line"

at another DOC facility 1 and had never provided him with any personal

information or her address and had not authorized him to contact her. The nurse

also explained she previously received a letter from Norman and had reported

her receipt of that letter to the SID. She requested that Norman "stop trying to

contact" her because she had "nothing to say to him."




1
 It appears Norman previously served part of his prison sentence at South
Woods State Prison.



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                                       2
      In pertinent part, the letter2 states that the nurse "crossed [Norman's] mind

on many occasions," and that he had expressed to her in the past that she was

"attractive" to him. He explained that he was going to be released in September

2017, and stated "maybe we can go on a date." He asked the nurse to email him

and said he "miss[ed] talking and joking around with" her and "hope[d] [to] hear

from" her.

      The DOC served Norman with a disciplinary charge alleging he

committed prohibited act .702, unauthorized contacts with the public, in

violation of N.J.A.C. 10A:4-4.1(a)(3)(xviii). Norman was assigned a counsel

substitute.   At the initial hearing, the DOC amended the charge to allege

prohibited act *.005, threatening another with bodily harm, in violation of

N.J.A.C. 10A:4-4.1(a)(2)(ii). The record reflects that Norman pleaded "guilty"

to the *.005 charge, admitting he sent the letter to the nurse. His counsel

substitute argued that "the language in the letter was ambiguous and not

threatening in nature" and requested that the charge "be modified to" allege

prohibited act "[.]709[,] undue familiarity with staff."3


2
  The letter is dated "4-14-2017." The nurse reported that she received the letter
on April 25, 2017. She reported her receipt of the letter to SID in May 2017.
3
  Prohibited act .709 is a "failure to comply with a written rule or regulation of
the correctional facility." N.J.A.C. 10A:4-4.1(a)(4)(ix).
                                                                           A-4849-16T2
                                        3
      The hearing officer found Norman guilty of prohibited act *.005 and

summarized the evidence supporting the determination. The hearing officer

explained that Norman admitted sending the letter, and that the nurse did not

know how Norman obtained her address and wanted Norman to stop sending her

letters. The hearing officer found Norman stated the nurse was "attractive to"

him and that "he may show up at her place of residence." The hearing officer

also determined Norman did "not indicate he will harm" the nurse. The hearing

officer noted the letter was "not the first letter" Norman sent to the nurse.

      The hearing officer imposed sanctions including 181 days of

administrative segregation, 365 days' loss of commutation time, thirty days' loss

of recreational privileges and a verbal reprimand. Norman appealed the hearing

officer's decision. A DOC assistant superintendent upheld the hearing officer's

decision and sanctions. This appeal followed.

      Norman offers the following argument for our consideration:

            POINT I

            THE DECISION OF THE HEARING OFFICER
            VIOLATED DUE PROCESS AND THEREFORE
            SHOULD BE VACATED.

            (a) The Decision of the Hearing Officer Should be
            Vacated Because the Determination was not Based
            Upon Substantial or Credible Evidence.


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                                         4
      Our standard of review of agency determinations is limited. See In re

Stallworth, 208 N.J. 182, 194 (2011); Brady v. Bd. of Review, 152 N.J. 197, 210

(1997); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div.

2010). We will not reverse the decision of an administrative agency unless it is

"arbitrary, capricious, or unreasonable, or [] not supported by substantial

credible evidence in the record as a whole."        Stallworth, 208 N.J. at 194

(alteration in original) (citation omitted); accord Jenkins v. N.J. Dep't of Corr.,

412 N.J. Super. 243, 259 (App. Div. 2010).           Nonetheless, "we will not

perfunctorily review and rubber stamp the agency's decision," Balagun v. N.J.

Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003), and must "engage in

a 'careful and principled consideration of the agency record and findings,'"

Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting

Mayflower Sec. Co. v. Bureau of Sec., Div. of Consumer Affairs, 64 N.J. 85, 93

(1973)).

      N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary

hearing shall be based upon substantial evidence that the inmate has committed

a prohibited act." The hearing officer must specify the evidence relied upon in

making a finding of guilt. N.J.A.C. 10A:4-9.15(b). Substantial evidence needed

to sustain guilt of an infraction is "such evidence [that] a reasonable mind might


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                                        5
accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35

N.J. 358, 376 (1961) (citations omitted).

      Prohibited act *.005 is committed where an inmate "threaten[s] 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). "The determination of whether [an

action] constitutes a threat is made on the basis of an objective analysis of

whether [the action] conveys a basis for fear." Jacobs v. Stephens, 139 N.J. 212,

222 (1995). For example, in the criminal context, a terroristic threat occurs

where "the words or conduct [are] of such a nature as would reasonably convey

the menace or fear of death to the ordinary hearer." Id. at 222-23 (alteration in

original) (quoting State v. Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985)).

      Based on our review of the record, we are convinced the DOC's finding

that Norman committed prohibited act *.005 is not supported by substantial

credible evidence. Viewed objectively, Norman's letter simply does not contain

any threats, either express or implied, of bodily harm or the commission of any

other offense. Moreover, there is no evidence beyond the content of the letter

supporting an objective conclusion that the mailing of the letter conveyed a basis




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                                        6
for any fear of bodily harm or the commission of any offense. 4      Indeed, the

hearing officer found the letter did not include any suggestion Norman "would

harm" the nurse, and the nurse did not report that she feared Norman would

cause her bodily injury or commit an offense against her. Rather, she reported

only that she wanted Norman's unwelcome and unwanted communications to

stop.

        To be sure, Norman's unsolicited letter to the nurse is inappropriate and

unwelcome and, for those reasons, Norman may have been appropriately

charged with other prohibited acts, including the initial charge of committing

prohibited act .702, unauthorized contacts with the public, or .709, violating

written rules or regulations of the correctional facility. The DOC, however,

chose to amend the initial charge and prosecute Norman only for prohibited act

*.005, which required proof that he threatened the nurse with bodily injury or

the commission of another offense. For the reasons noted, the evidence failed

to sustain the DOC's burden of presenting substantial credible evidence

supporting those elements of the alleged offense.



4
  There is no basis in the record to conclude that Norman's alleged prior mailing
of a letter to the nurse supports a finding that the letter sent in April 2017
constituted a threat of bodily harm. The prior letter was not presented to the
hearing officer and is not part of the record.
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                                        7
      We reject the notion that, under the circumstances presented here,

Norman's purported guilty plea to prohibited act *.005 is sufficient to support

the DOC's determination.      Cf. Avant v. Clifford, 67 N.J. 496, 530 (1975)

(finding an inmate's guilt on a disciplinary infraction may be supported by an

admission to the infraction).    In summarizing the evidence supporting the

determination Norman committed prohibited act *.005 as required by N.J.A.C.

10A:4-9.15(b), the hearing officer does not rely on Norman's purported plea.5

Instead, the hearing officer relied only on Norman's admission that he sent the

letter and the statements in the letter. As noted, that evidence is insufficient to

support the DOC's determination that Norman committed prohibited act *.005.

      Reversed.




5
  In his brief on appeal, Norman denies pleading guilty to prohibited act *.005
and argues that he actually pleaded guilty to the initial charge, the commission
of prohibited act .702. Although the DOC records include an "X" in a box
indicating that Norman pleaded guilty to prohibited act *.005, the handwritten
portions of the records reflect that Norman admitted only that he mailed the
letter to the nurse. The DOC records further demonstrate Norman denied
threatening the nurse either by sending the letter or in any other manner. Those
denials are inconsistent with a purported plea of guilty to prohibited act *.005.
In any event, and as noted, Norman's purported guilty plea is not cited as a basis
for the hearing officer's determination of Norman's guilt. See N.J.A.C. 10A:4-
9.15(b).
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