                                NOT FOR PUBLICATION WITHOUT THE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-0618-16T2


SHAMSIDDIN ABDUR-
RAHEEM,

         Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted October 25, 2018 – Decided June 5, 2019

                   Before Judges Simonelli and O'Connor.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Shamsiddin Abdur-Raheem, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa Dutton Schaffer, Assistant
                   Attorney General, of counsel; Suzanne M. Davies,
                   Deputy Attorney General, on the brief).

PER CURIAM
      Appellant Shamsiddin Abdur-Raheem appeals from the September 6,

2016 final agency decision of respondent New Jersey Department of Corrections

(DOC), which affirmed a hearing officer's decision finding appellant guilty of

and imposing disciplinary sanctions for prohibited act *.202, possession or

introduction of a sharpened instrument, knife, unauthorized tool, or other

weapon, in violation of N.J.A.C. 10A:4-4.1(a)(1)(x).        We vacate the final

decision and remand for a new hearing.

      Appellant, presently incarcerated in the New Jersey State Prison in

Trenton, is serving a life sentence for murder and kidnapping. On June 8, 2016,

Corrections Officer Recruit Kevin Fanning found in appellant's cell a

"sharpened piece of metal approximately 6 inches in length wrapped in cloth

wedged behind the sink between a piece of folded cardboard."             Fanning

maintained the search was routine and not targeted.

      Appellant was charged with prohibited act *.202 and, at the initial hearing,

pled not guilty, and requested and was granted counsel substitute. Before the

final hearing, appellant unsuccessfully sought certain discovery from the DOC.

Appellant's request that the hearing officer recuse herself because appellant had

served her with a Tort Claims Act notice of claim pursuant to N.J.S.A. 59:8 -8

in May 2016 was denied.


                                                                         A-0618-16T2
                                        2
      On June 29, 2016, appellant was found guilty of *.202 at the conclusion

of the final hearing, and sanctioned to 365 days of administrative segregation,

365 days' loss of commutation time, and 30 days' loss of recreational privileges.

He appealed the hearing officer's decision claiming, among other things, that he

discovered new evidence.       He detailed the nature of such evidence in a

certification submitted in support of his administrative appeal.

      Specifically, appellant certified that on July 2, 2016, another inmate,

Antoine Simmons, told appellant that Simmons had an argument with

Corrections Officer Marcus Sherrod on June 29, 2016. During that argument,

Sherrod told Simmons that if Simmons continued to complain, Sherrod was

going to put a shank in Simmons' cell "just like '10 cell.'" Appellant was in cell

#10 at that time. Appellant also certified that, on June 2, 2016, he had submitted

a complaint against Sherrod. Appellant further noted his defense of prohibited

act *.202 was that Sherrod had instructed Fanning to plant the shank in

appellant's cell, in retaliation for submitting the complaint against Sherrod.

      Also attached to the documents appellant submitted in support of his

administrative appeal was a certification executed by Simmons.              In his

certification, Simmons stated in pertinent part:

                  1. That on numerous occasions Sgts. R. Defazio,
            Sean Patterson and Robert Delarosa have threatened me

                                                                          A-0618-16T2
                                        3
            stating that if I keep writing up inquiries, grievances
            and appeals like [appellant's], we will put a knife in
            your cell. Also, I wrote up exactly what they said on
            June 29, 2016 right after officer Marcus Sherrod came
            to my cell at 8:49 [a.m.] when he stated keep it up you
            will be in the same position as cell #10, [appellant's]
            cell, on June 8, 2016 . . . .

                  5. I have personally witnessed these corrections
            staff admit to and brag about placing a weapon in
            [appellant's] cell.

      In his appeal, appellant argued he was entitled to a new hearing based on

the newly discovered evidence. However, the prison administrator affirmed the

hearing officer's decision and sanctions. The administrator did not address the

evidence appellant discovered after the final hearing.

      On appeal, appellant raises a number of contentions, one of which is he is

entitled to a new hearing because of the newly discovered evidence. We agree.

      Our review of agency determinations is limited. In re Stallworth, 208 N.J.

182, 194 (2011). 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." Ibid. (alteration in

original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

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,


                                                                        A-0618-16T2
                                       4
204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., Div. of

Consumer Affairs, 64 N.J. 85, 93 (1973)). Moreover, "[a]n appellate tribunal is

. . . in no way bound by the agency's . . . determination of a strictly legal issue."

Mayflower Sec. Co., 64 N.J. at 93. Thus, we may intervene when an agency

does not follow the law. See Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys.,

143 N.J. 22, 25 (1995).

      Here, the administrator of the prison did not adhere to N.J.A.C. 10A:4-

11.5(a)(2), which provides in pertinent part:

             (a) At the conclusion of the Administrator's or
             designee's review of an appeal, one of the following
             actions shall be taken:

                   ....

                          2. The Administrator or designee shall
                   rescind the original decision and order a new
                   hearing if the review and/or investigation
                   indicates that . . . new evidence not available at
                   the original hearing is revealed. If a new hearing
                   is ordered, there shall be no increase in the
                   severity of the sanctions unless new evidence
                   warrants such action.

      In the documents submitted in support of his administrative appeal,

appellant provided new evidence, principally on the question of credibility, the

details of which were set forth in his and Simmons' certifications. Such evidence

was not available at the time of the final hearing. Therefore, the administrator

                                                                            A-0618-16T2
                                         5
was obligated to rescind the hearing officer's decision and order a new hearing.

N.J.A.C. 10A:4-11.5(a)(2); see also Fisher v. Hundley, 240 N.J. Super. 156,

161-62 (App. Div. 1990) ("Where . . . new evidence has been discovered that

was not previously available, the superintendent or his designee must order a

new hearing pursuant to N.J.A.C. 10A:4-11.5(a)(2)[.]").             Because the

administrator failed to rescind the hearing officer's decision, we must vacate the

final decision and remand for a new hearing. In light of our disposition, we need

not address appellant's remaining arguments.

      The final agency decision is vacated and the matter remanded for further

proceedings consistent with this opinion. We do not retain jurisdiction.




                                                                         A-0618-16T2
                                        6
