                                NOT FOR PUBLICATION WITHOUT THE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-1091-17T3

MICHAEL STANTON,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                    Submitted June 5, 2019 – Decided July 8, 2019

                    Before Judges Nugent and Reisner.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Michael Stanton, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Kevin J. Dronson,
                    Deputy Attorney General, on brief).

PER CURIAM
      Michael Stanton, a prison inmate, appeals from a September 11, 2017 final

decision of the assistant prison superintendent, upholding the determination of

a hearing officer that Stanton committed prohibited act *.002, assaulting any

person. Despite our request, the Department of Corrections (DOC) failed to

provide this court with a critical portion of the record – a security video on which

the hearing officer relied in deciding the case. See R. 2:5-4(d). In a letter dated

June 25, 2019, the DOC's counsel advised that the agency "has been unable to

locate the subject video." Because the non-production of the evidence precludes

meaningful appellate review, we vacate the final decision and remand the case

to the DOC for a new hearing before a different hearing officer.

      To put our decision in context, we briefly summarize the case. Another

inmate, who was charged with flooding his cell, claimed in defense that Stanton

threw human waste into the inmate's cell, leading the alleged victim to flood the

cell with water while trying to wash off the waste. Stanton, who was a "runner"

assigned to deliver food to other inmates in their administrative segregation

cells, responded that he did not throw anything at the alleged victim, but simply

handed him a cup of pudding and bread. The hearing officer viewed a security

video of the incident and concluded Stanton threw waste into the victim's cell.




                                                                            A-1091-17T3
                                         2
      On this appeal, Stanton first argues that it was a violation of due process

and agency rules, which he cites as N.J.A.C. 10A:9-5(b), for the same

corrections sergeant to investigate both the flooding charge against the alleged

victim and the *.002 charge against Stanton. We reject that argument. The

correct citation to the rule is N.J.A.C. 10A:4-9.5(b). A plain-language reading

of that regulation reveals that it does not apply here, because the investigating

sergeant was not "involved" in the flooding incident or the waste-throwing

incident.

      Stanton also asserts that the evidence does not support the hearing officer's

factual findings. From her decision, it is clear that the hearing officer relied on

the video, which she viewed during the hearing in the presence of Stanton and

his inmate counsel substitute. However, despite the central importance of the

video, the DOC's statement of items comprising the record on appeal does not

specifically list the video and the appendices do not include it. See R. 2:5-4(b).

Further, this evidence is exclusively within the DOC's control and was not

produced, although requested, apparently because the agency lost or misplaced

it. See R. 2:5-4(d). Accordingly, we cannot engage in meaningful appellate

review of the DOC's decision.




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                                        3
      Under these circumstances, we find that fairness to both sides will be

served by vacating the agency's decision and remanding the case for a new

hearing before a different hearing officer. See In re Corbo, __ N.J. __, __ (2019)

(slip op. at 10-12) (holding that a remand, rather than a reversal, was the

appropriate remedy for procedural error, where the agency might be able to

prove its case on remand). To be clear, the new hearing officer may not consider

the previous decision and must render a decision based solely on the evidence

each side presents at the new hearing. If the DOC locates the video, it may use

it at the new hearing. If the DOC does not have the video, the agency may rely

on different evidence, such as testimony from the alleged victim, if he is willing

and available. However, the DOC may not rely on hearsay about the video if it

is not physically available for the new hearing officer to view. Proceedings on

remand shall be completed within sixty days of the date of this opinion.

      Vacated and remanded. We do not retain jurisdiction.




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