                                NOT FOR PUBLICATION WITHOUT THE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-5066-16T2

BRENSTON AYERS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                    Submitted January 29, 2019 – Decided February 7, 2019

                    Before Judges Geiger and Firko.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Brenston Ayers, 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 the brief).

PER CURIAM
      Appellant Brenston Ayers, an inmate at Southern State Correctional

Facility, appeals from sanctions imposed upon him by the Department of

Corrections (DOC) for violating prison rule *.004, fighting with another person,

and being in an unauthorized area in violation of rule *.402, contrary to N.J.A.C.

10A:4-4.1(a). We affirm.

      On June 4, 2017, Senior Corrections Officer M. McGrath observed Ayers

walk from his housing unit, A Wing, to D Wing, when he engaged in a physical

altercation with another inmate, Raymond Cooper.

      On June 7, 2017, a disciplinary hearing was held. Ayers pled not guilty

to the *.004 charge and guilty to the *.402 charge. He was assigned a counsel

substitute. At the hearing, Ayers testified that there "was no fight" between he

and Cooper, and that he simply "snatched [Cooper's] coffee and [Cooper]

snatched it back."    Ayers' counsel sought leniency because there was no

supporting surveillance video and no "marks per medical." On the evidence

presented as to the *.004 charge, hearing officer Ralph found Ayers guilty of

fighting with Cooper. Officer Ralph noted that Ayers pled guilty to the *.402

charge and sanctioned him accordingly. Following an administrative appeal, the

Associate Administrator upheld the findings of guilt.




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      On appeal, Ayers contends that the sanctions imposed violate his due

process rights afforded by the Fourteenth Amendment to the United States

Constitution and the New Jersey Constitution. Additionally, he contends that

the finding of guilt as to the *.004 charge was not based on substantial evidence

and should be vacated. We disagree.

      In reviewing an agency decision, the scope of our inquiry is limited. In re

Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81

N.J. 571, 579 (1980)).       Upon review, we are to ascertain whether the

administrative action was "arbitrary, capricious or unreasonable or [ ] is not

supported by substantial credible evidence in the record as a whole." Ramirez

v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original)

(quoting Henry, 81 N.J. at 579-80). "The burden of demonstrating that the

agency's action was arbitrary, capricious or unreasonable rests upon the [party]

challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-

44 (App. Div. 2006) (citing McGowen v. N.J. State Parole Bd., 347 N.J. Super.

544, 563 (App. Div. 2002)).

      A prison disciplinary hearing is not part of a criminal's prosecution, and

thus does not guarantee a full spectrum of due process rights given to a criminal

defendant. Avant v. Clifford, 67 N.J. 496, 522 (1975). Defendants in a prison


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                                        3
disciplinary hearing, however, are entitled to a limited range of due process

rights. Id. at 522-23. These rights include: the right to an impartial tribunal,

which may consist of personnel from the central office staff of the DOC; written

notice of the charges at least twenty-four hours prior to the hearing; a limited

right to call witnesses and present documentary evidence; a limited

confrontation right; a right to a written statement of the evidence used and

justification for the sanctions imposed; and a right to the assistance of substitute

counsel. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96

(1995).

      A review of the record fails to reveal any violation of the inmate's rights.

Here, a copy of the disciplinary report, signed and dated on June 5, 2017, was

delivered to Ayers. The disciplinary decision was signed and dated on the

following day, thus satisfying the twenty-four hour notice requirement. The

hearing was conducted before an impartial tribunal where Ayers had the

assistance of substitute counsel.

      Ayers was able to make a statement on his own behalf, call witnesses on

his behalf, and cross-examine adverse witnesses. He was allowed to review the

adjudication reports and the evidence considered by the hearing officer. Thus,

Ayers' due process claim must fail.


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                                         4
      Finally, we are satisfied that there was ample credible evidence in the

record as a whole supporting the hearing officer's and DOC's decisions. The

evidence against Ayers was substantial. McGrath witnessed Ayers enter a

housing unit that he did not reside in, and confirmed the physical altercation.

Ayers pled guilty to committing prohibited act *.402. Thus, it is clear that there

was sufficient evidence to charge and find Ayers guilty of both offenses.

      Affirmed.




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