                                NOT FOR PUBLICATION WITHOUT THE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-0353-17T2

GUILIO MESADIEU,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted September 10, 2019 – Decided September 23, 2019

                    Before Judges Vernoia and Susswein.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Guilio Mesadieu, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Christopher C. Josephson, Deputy
                    Attorney General, on the brief).

PER CURIAM
         Guilio Mesadieu, an inmate at East Jersey State Prison, appeals from the

New Jersey Department of Corrections' (DOC) final agency decision finding

him guilty of the following prohibited acts: *.260, refusing to submit to a

medical test required by a court order, N.J.A.C. 10A:4-4.1(a)(2)(xxvii); *.306,

conduct that disrupts or interferes with the orderly running of the correctional

facility, N.J.A.C. 10A:4-4.1(a)(2)(xxix); and .256, refusing to comply with a

staff member's order, N.J.A.C. 10A:4-4.1(a)(4)(iv).         Because the DOC's

decision is supported by substantial credible evidence and Mesadieu's arguments

challenging the decision lack merit, we affirm.

         The DOC alleged that on August 18, 2017, Mesadieu refused to comply

with a court order directing that he submit to the taking of a buccal swab; defied

officers' orders that he cooperate in their taking of the swab; and interfered with

the facility's operation by refusing to supply the swab, physically resisting the

officers' attempts to obtain the swab, and necessitating the presence of more than

six officers to obtain the swab. Mesadieu pleaded not guilty to the charges and

was assigned a counsel substitute. In response to Mesadieu's request, a video

recording of the incident giving rise to the charges was provided by the DOC

and reviewed by Mesadieu, his counsel substitute, and the DOC disciplinary

staff.


                                                                           A-0353-17T2
                                         2
      The disciplinary hearing officer reviewed numerous officer's reports, the

video recording, and Mesadieu's statements. The hearing officer found that a

court order directed Mesadieu to provide a buccal swab while he was

temporarily remanded from East Jersey State Prison to the Union County Jail.

The hearing officer also found that Mesadieu refused to submit to the taking of

the swab and defied officers' orders that he do so. The officers placed Mesadieu

in a restraint chair, and he again defied their order that he cooperate in the taking

of the swab. Officers physically forced open Mesadieu's mouth and obtained

the swab. Mesadieu's defiance and refusal disrupted the unit in which he was

located because more than six officers were required to obtain the swab. At the

hearing, Mesadieu said he told the officers he "was not submitting" to, and did

not consent to, the taking of the swab, but he claimed he never closed his mouth,

defied the officers' orders, or resisted their efforts to obtain the swab. Mesadieu

declined to call or cross examine witnesses during the hearing, and he did not

request any witness statements.

      The hearing officer determined Mesadieu committed prohibited acts

*.260, *.306, and .256, and imposed sanctions. 1 Mesadieu appealed, and the


1
  The hearing officer imposed the following sanctions on the *.260 charge: 180
days' administrative segregation, 125 days' loss of commutation time, fifteen


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                                         3
East Jersey State Prison Assistant Superintendent upheld the hearing officer 's

decision. This appeal followed.

      On appeal, Mesadieu offers the following arguments:

            POINT [ONE]

            [] MESADIEU SHOULD HAVE BEEN FOUND NOT
            GUILTY OF [*.306], [*.260], and [.256]
            BECAUSE . . . MESADIEU WAS EXERCISING HIS
            RIGHT TO CHOOSE THE LESSER EVIL, AND A
            DEFENSE OF NECESSITY IS A LEGITIMATE
            DEFENSE[.]

            POINT [TWO]

            THE ADMINISTRATOR'S FAILURE TO ADDRESS
            THE MERITS OF . . . MESADIEU'S APPEAL
            RENDERS THE DEC[I]SION ARBITRARY AND
            [CAPRICIOUS.]

            POINT [THREE]

            [MESADIEU] WAS DENIED DUE PROCESS
            BECAUSE HIS ADMINISTRATIVE APPEAL WAS
            HEARD BY THE WRONG ADMINISTRATION[.]




days' loss of recreation privileges, and 365 days of urine monitoring. On the
*.306 charge, the hearing officer imposed 100 days' administrative segregation,
100 days' loss of commutation time, and fifteen days' loss of recreation
privileges. The officer reduced the .256 charge to an "on the spot correction,"
N.J.A.C. 10A:4-7.3(a), and imposed a sanction of five days' loss of recreation
privileges. Mesadieu does not challenge the sanctions on appeal.
                                                                       A-0353-17T2
                                      4
            POINT [FOUR]

            MESADIEU   WAS     DENIED       EFFECTIVE
            ASSISTANCE OF COUNSEL SUBSTITUTE IN
            CONTRAVENTION [OF] N.J.A.C. 10A:4-9.12[.]

      Our 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 an administrative agency's decision 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 (2011) (citation omitted);

accord Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010).

Nonetheless, we 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., 64 N.J.

85, 93 (1973)).

      Mesadieu argues he could not be found guilty of refusing to comply with

the court's and officers' orders because he was entitled under our criminal code,

N.J.S.A. 2C:3-2, to defy the orders based on the defense of necessity.         He

contends he was entitled by necessity to refuse to provide the buccal swab




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                                       5
because the taking of the swab violated "his constitutionally protected civil

liberties."

      "Prison disciplinary proceedings are not part of a criminal prosecution,"

Jenkins v. Fauver, 108 N.J. 239, 248 (1987) (quoting Wolff v. McDonnell, 418

U.S. 539, 556-57 (1974)), and our criminal code has no application to the DOC's

prosecution of charges against an inmate.        An inmate's rights related to

disciplinary charges are codified in DOC regulations, N.J.A.C. 10A:4-9.1

to -9.28, which "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." Williams, 330 N.J. Super. at 203 (citing McDonald v. Pinchak, 139

N.J. 188, 202 (1995)). The regulations do not provide for, or address, the

defense of necessity.

      Mesadieu's reliance on the common law defense of necessity is similarly

misplaced. See State v. Tate, 102 N.J. 64, 67-70 (1986) (discussing the elements

of the common law defense of necessity to criminal charges).           Under the

common law defense of necessity, "[c]onduct that would otherwise be criminal

is justified if the evil avoided is greater than that sought to be avoided by th e

law defining the offense committed, or, conversely, if the conduct promotes

some value higher than the value of compliance with the law." Id. at 73. Even


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                                        6
assuming the defense of necessity might be applicable in the context of a prison

disciplinary proceeding,2 it provides Mesadieu no refuge. He claims the evil he

sought to avoid by his defiance of the court's and officers' orders was a violation

of his constitutional rights, but he does not cite to any authority for his claim

that he had a constitutional right to refuse to comply with the court's order for

the buccal swab. If Mesadieu objected to the court's order, his recourse was to

challenge it on appeal. Where "a legal alternative [is] available, the illegal

alternative [is] not 'necessary,'" and the common law defense of necessity is

unavailable. Id. at 75.

      We also reject Mesadieu's contention that the Assistant Superintendent's

decision did not address critical issues or analyze the relevant evidence. The

Assistant Superintendent expressly upheld the disciplinary hearing officer's

decision, which included findings of fact supporting the determination that

Mesadieu committed the charged prohibited acts.         "[I]n prison disciplinary

matters we have not traditionally required elaborate written decisions,"

Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002), and the



2
   We need not, and do not, decide whether there might be circumstances
permitting the proper assertion of a common law defense of necessity to inmate
disciplinary charges. We decide only that, even assuming the defense is
available, it has no application under the facts and circumstances presented.
                                                                           A-0353-17T2
                                        7
hearing officer's findings, as adopted by the Assistant Superintendent, provide a

sufficient record to discern the basis for the DOC's final decision, allow

Mesadieu to challenge the DOC's actions, and permit appropriate appellate

review. See Williams, 330 N.J. Super. at 203 (explaining that appellate review

of an agency decision requires a "careful and principled consideration of the

agency record and findings" (quoting Mayflower Sec. Co., 64 N.J. at 93)).

      Mesadieu also argues that he could not be disciplined because he was not

"provided with fair notice of the rules and regulations of [the] Union County

Jail," and therefore he was deprived of his right to receive notice "of not only

the conduct that is prohibited but also the sanction that may be imposed." We

reject this contention because although Mesadieu was present in the Union

County Jail when he committed the prohibited acts, he had been remanded there

from East Jersey State Prison, "continued to be 'an adult offender [] committed

to State correctional institutions,'" Ries v. Dep't of Corr., 396 N.J. Super. 235,

239 (App. Div. 2007), and "remained subject to the legal custody and authority

of the Commissioner of Corrections," id. at 238. Mesadieu was neither charged

with nor found guilty of violating any Union County Jail rule or regulation. The

Union County Jail's administration did not file or adjudicate disciplinary charges

against Mesadieu, and the Union County Jail's rules and regulations were


                                                                          A-0353-17T2
                                        8
applicable to him only to the extent they did not conflict with the DOC's

regulations applicable to state prison inmates. Bryan v. Dep't of Corr., 258 N.J.

Super. 546, 546 (App. Div. 1992); see also N.J.S.A. 30:4-85. The Union County

Jail rules and regulation could supplement, but not usurp, the DOC regulations

pursuant to which Mesadieu was charged.

      The DOC charged Mesadieu with committing prohibited acts under its

regulations.   See N.J.A.C. 10A:4-4.1.     Therefore, any purported failure to

provide notice of the Union County Jail's rules and regulations did not result in

a denial of due process. See Bryan, 258 N.J. Super. at 552 (explaining due

process requires that "an inmate . . . be given notice before committing an

infraction of not only the conduct that is prohibited but also the sanction that

may be imposed"). Mesadieu does not claim that he did not receive notice of

the DOC's regulations prior to the August 18, 2017 incident. He also does not

argue that when he was admitted to East Jersey State Prison, the DOC failed to

provide him with a disciplinary rule book detailing the chargeable offenses and

sanctions, explaining the disciplinary procedures and appeal process, and

advising that "N.J.A.C. 10A:4" concerning inmate discipline "also applies to

State sentenced inmates incarcerated within [an] adult county correctional

facility," as required by N.J.A.C. 10A:31-16.2(a)(5). Thus, the record does not


                                                                         A-0353-17T2
                                       9
permit a conclusion that Mesadieu lacked notice of the prohibited acts and their

concomitant sanctions under the DOC's regulations prior to the incident that

resulted in the disciplinary charges.

      Mesadieu also argues his counsel substitute was ineffective by failing to

appeal the hearing officer's determination "to the correct institution," which

Mesadieu erroneously contends is the Union County Jail. The argument is

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

      We are satisfied Mesadieu was afforded all due process protections

required under Avant v. Clifford, 67 N.J. 496, 525-46 (1975), the DOC's

decision is based on substantial credible evidence establishing that Mesadieu

committed the prohibited acts, 3 and the DOC's decision is not arbitrary,

capricious, or unreasonable. Ramirez v. Dep't. of Corr., 382 N.J. Super. 18, 23

(App. Div. 2005) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80




3
   Mesadieu does not argue there is a lack of substantial credible evidence
supporting the hearing officer's and Assistant Superintendent's findings and
determinations. An issue not briefed on appeal is deemed waived. See
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Jefferson
Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008).


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                                        10
(1980)); N.J.A.C. 10A:4-9.15(a). We therefore affirm the DOC's final agency

decision.

      Affirmed.




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