SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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LETTIE CARSTARPHEN, Appellant,

v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

___________________________

Submitted September 13, 2022

– Decided September 16, 2022 Before Judges Sumners and Geiger. On appeal from the New Jersey Department of Corrections. Lettie Carstarphen, appellant pro se. Matthew J. Platkin, Acting Attorney General, attorney for respondent (Donna Aarons, Assistant Attorney General, of counsel; Raajen V. Bhaskar, Deputy Attorney General, on the brief). PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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Appella nt Lettie Carsta rph e n , an inmate at the Edna Mahan Correctional Facility (E MCF) , appeals from the April 1 7 , 2020 final decision of respondent New Jersey Department of Corrections (NJDOC) upholding a hearing offic er's finding that s he committed prohibited acts *.803 /*.002 , "attempting to commit, aiding another person to commit or making plans to commit" an assault of another person , and .709 , " failure to comply with a written rule or regulation of the correctional facility , " 1 in violation of N.J.A.C. 10A:4

- 4.1(a). 2 We affirm. We take the following facts from the record. On April 7, 2020, NJDOC staff received a request from appellant's mother that appellant be medically evaluated because appellant claimed she was losing her sense of smell. 3 Staff removed appellant from the Administrative Segregation Y ard and began

1 The .709 charge relates to the same incident as the *.803/*.002 charge.

2 Based on a different incident, a ppellant was also charged and found to have committed prohibited acts *.002 , " assault ing any person " and *.050 " sexua l assault or abuse

. " While this appeal was pending, t he NJDOC moved to remand the *.002 and *.050 charges. We granted the motion. On remand, those charges were dismissed by the NJDOC for lack of evidence and the appeal of adjudication of guilt of those charges was dismissed by order dated March 4, 2022. Accordingly, we do not address those dismissed charges in this opinion.

3 "Temporary loss of smell, or anosmia , is the main neurological symptom and one of the earlie t and most commonly reported indic ators of COVID

- 19 . . . ." Kevin Jang, How COVID

- 19 Causes Loss of Smell , (July 24, 2020) , https://hms.harvard.edu/news/how

- covid

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- causes - loss

- of

- smell

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e scorting her to the medical unit for assessment. During the escort, appellan t became agitated and belligerent and questioned the basis for her medical
assessment. Upon arrival at the medical unit, a ppellant remained uncooperative and would not allow medical staff to conduct the assessment. While attempting to move appellant to a sitting area, appellant stated that she "ain't going n o f **king where" and asked NJDOC staff whether they were "scared [they w ould ] catch COVID ." A t one point, a ppellant attempted to spit on Senior Correctional Police Officer (SCPO) Williams, who was standing "approximately four feet away." Appellant repeatedly stated she wanted to fight Williams. Appellant then "intentionally and forcefully coughed four times in [ Williams 's ] direction, " stating she "hope [ d ] " Williams would "die."
A ppellant remained seated, refusing to comply with repeated commands from NJDOC staff " to stand up and walk." Lieutenant Molina then sprayed appellant with O.C. spray . Appellant then complied with commands to stand and walk. Appellant was escorted to a control point to be deco n taminated and was then returned to her cell without further incident. On April 8, 2020, appellant was charged with prohibited act *.002

. The next day, NJDOC staff served ap pellant with the disciplinary report setting forth the *.002 charge.4 A

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The disciplinary hearing was conducted before a D isciplinary H earing O fficer (DHO) on April 14, 2020. Appellant requested and was afforded the assistance of a counsel substitute. Appellant pleaded not guilty to the charge and put on a defense at the hearing, clai m ing she had a cold and did not try to cough on Williams. Counsel substitute requested that the charge be dismissed because appellant "had a cough." Statements of eight eyewitnesses of the incident described appellant's behavior. Each eyewitness reported that appellant was agitated, uncooperative, belligerent , combative and/or defiant until the O.C. spray was used. Four of the eyewitnesses observed appellant intentional ly cough in Williams's direction while making threatening remarks about staff contracting or dying from COVID

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. More specifically, Registered Nurse Gas ataya observed appellant "coughing intentionally in front of the officers " and verbally threatening t hem. (Ra50). SCPO Stallworth reported that appellant "bec [ a ] me belligerent towards [Williams] , " repeatedly stated that she wanted to fight Williams, and "attempted to spit and cough on [Williams] , " while stating that she was going to give Williams COVID

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reported appellant "cough [ed] multiple times at . . . close proximity at [Williams] " and shouted threats. Appellant was afforded the opportunity to call witnesses on her own behalf at the hearing but declined to do so. Appellant also declined the opportunity to confront and cross

- examine the adverse witnesses. Appellant raised numerous procedural defenses that pertain ed solely to the *.002 and *.005 charges relating to a September 2019 incident, not the charges that are the subject matter of this appeal. The o nly procedural defense that pertain s to the remaining charges that are the subject matter of this appeal is that charge s *.803/*.002 and *.050 were not supported by substantial evidence in the record. After hearing the testimony , reviewing the evidence, and considering appellant's defense s , the DHO amended the *. 002 charge to prohibited acts *.803/*.002 and the *.05 0 charge to prohibited act .709, and found appellant guilty of the amended charges

. The DHO noted the seriousness of the pandemic, the d a ngers posed by COVID

- 19 , and the evidence that appellant intentionally coughed on Williams. The DHO imposed sanctions of 185 d a ys of administrative segregation , 100 days loss of commutation time , 20 days loss of recreation privileges, and 15 days loss of telephone privileges.6 A

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Appellant administratively appealed the DHO's decision. Appellant argued that the alleged fact s did not constitute an assault and that she was physically incapable of covering her mouth while coughing due to being restrained by handcuffs that were tethered to a waist chain . On April 16, 2020, Associate Administrator St. Paul upheld the g u ilty find ing and the sanctions imposed. This appeal followed. Pertinent to this appeal, a ppellant now raises the following contentions : THE FINDING OF GUILTY FOR THE *.803/*.002 AND .709 CHARGES SHOULD BE REVERSED BECAUSE THERE WAS NOT SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDING OF GUILTY. 1. The Disciplinary Charge Fails to Specify What Actions b y an Inmate Constitute an Assault Under the Code a nd [is] Therefore Unconstitutionally Vague. 2. Even Under Commonly

- Understood Principles, No Attempted Assault Occurred. Our review of a final agency decision is limited. Figueroa v. N.J. Dep't of Corr. , 414 N.J. Super. 186, 190 (App. Div. 2010). Reversal is appropriate only when the agency's decision " is arbitrary, capricious, or unreasonable or it is n ot supported by substantial credible evidence in the record as a whole. " In7 A

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re Taylor , 158 N.J. 44, 657 (1999) (quoting Henry v. Rahway State Prison , 81 N.J. 571, 579

- 80 (1980)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Figueroa , 414 N.J. Super. at 191 (quoting Blackwell v. Dep't of Corr. , 348 N.J. Super. 117, 123 (App. Di v. 2002)). We 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)). In a disciplina ry proceeding, an inmate is not entitled to "the full panoply of rights" afforded a defendant in a criminal prosecution. Avant v. Clifford , 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer , 408 U.S. 471, 4 80 (1972)). An inmate is entitled to written notice of the charges at least twenty

- four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross

- examine adverse witnesses; a right to a written statemen t of the evidence relied upon and the reasons for the sanctions imposed; Id. at 525

- 33. " When an inmate has been charged with an asterisk offense , the inmate shall be afforded the right to request representation by a counsel substitute." N.J.A.C. 10A:4

- 9 .12(a). In addition. i f8 A

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the " inmate is illiterate or cannot adequately collect and present the evidence in his or her own behalf, the inmate may request to receive the services of a counsel substitute. N.J.A.C. 10A:4

- 9.12( b ). Here, appellant received timely notice of the charges pertaining to this appeal. She was appointed a counsel substitute to assist her. Appellant was afforded the opportunity to call witnesses on her own behalf and to confront and

cross - examine adverse wi tnesses but declined to do so. Appellant received all the process s he was due. We discern no denial of due process

. Appellant 's argu ment that prohibited act *.002 is unconstitutionally vague either facially or as applied, does not require extended discussion. R. 2:11

- 3(e)(1)(E). We disagree. Intentionally coughing on someone while manifesting symptoms of being infected by a highly commu nicable disease that can be spread through airborne particles and cough droplets clearly falls within the definition of an assault. 4 Cf. N.J.S.A. 2C:12

- 13 (throwing a bodily fluid at a NJDOC employee is a third

- degree or fourth

- degree aggravated assault

4 The "[s]pread of COVID

- 19 occurs via airborne particles and droplets. People who are infected with COVID

- 19 can release particles and droplets of respiratory fluids that contain the SARS C0

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- 2 virus into the ai r when they exhale (e.g., quiet breathing, s peaking, singing, exercise, cou ghing, sneezing)." Indoor Air and Coronavirus (COVID

- 19), U.S. E nv 't P ro t. A gency (Dec. 15, 2021) , https://www.epa.gov/coronavirus/indoor

- air

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- coronavirus

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depending on whether the victim suffers bodily injury). The crime of throwing a bodily fluid at a law enforc e ment officer " is a species of assault

. . . ." Cannel, N.J. Criminal Code Annotated , cmt. o n N.J.S.A. 2C:12

- 13 (2021). To be guilty of violating N.J.S.A. 2C: 12

- 13, an inmate must act " purposefully " when projecting bodily fluid at a corrections officer. State v. Majewski , 450 N.J. Super. 353, 361

- 67 (App. Div. 2017). We next consider whether there was adequate evidence to find appellant guilty of committing prohibited acts *.803/*.002 and .709 . "A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4

- 9.15(a). "Substantial evidence" is "such e vidence as a reasonable mind might accept as adequate to support a conclusion." Figueroa , 414 N.J. Super. at 192 (quoting In re Pub. Serv. Elec. & Gas Co. , 35 N.J. 358, 376 (1961)). In other words, it is "evidence furnishing a reasonable basis for the ag ency's action." Ibid. (quoting McGowan v. N.J. State Parole Bd. , 347 N.J. Super. 544, 562 (App. Div. 2002)). Our careful review of the record convinces us there was substantial credible evidence in the record that appellant committ ed prohibited acts *.803/*.002 and .709. Here, the observations of the multiple eyewitnesses, coupled with appellant's statements during the incident, provided both direct and10 A

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circumstantial evidence that appellant acted "purposely" when subjecting Williams to intentional coughing while appellant was unmasked. Accordingly, the NJDOC's final determination was not arbitrary, capricious, or unreasonable. To the extent we have not expressly discussed any remaining arguments raised by appellant, we conclude th ey lack sufficient merit to warrant discussion in a written opinion. R. 2:11

- 3(e)(1)(E). Affirmed.