SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3719-19

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NOT FOR PUBLICATION WITHOUT THE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." 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.
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Appellant Lettie Carstarphen, an inmate at the Edna Mahan Correctional 

Facility (EMCF), appeals from the April 17, 2020 final decision of respondent

New Jersey Department of Corrections (NJDOC) upholding a hearing officer's 

finding that she 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 Yard and began 

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

2

 Based on a different incident, appellant was also charged and found to have 

committed prohibited acts *.002, "assaulting any person" and *.050 "sexual 

assault or abuse." While this appeal was pending, the 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 earliet and most commonly reported indicators of COVID-19 . . . ." 

Kevin Jang, How COVID-19 Causes Loss of Smell, (July 24, 2020),

https://hms.harvard.edu/news/how-covid-19-causes-loss-of-smell. 
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escorting her to the medical unit for assessment. During the escort, appellant 

became agitated and belligerent and questioned the basis for her medical 

assessment. Upon arrival at the medical unit, appellant 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 no 

f**king where" and asked NJDOC staff whether they were "scared [they would]

catch COVID." At one point, appellant 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." 

Appellant 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 decontaminated 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 appellant with the disciplinary report setting forth the *.002 charge. 
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The disciplinary hearing was conducted before a Disciplinary Hearing 

Officer (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, claiming 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 intentionally cough in Williams's direction

while making threatening remarks about staff contracting or dying from 

COVID-19. 

More specifically, Registered Nurse Gasataya observed appellant 

"coughing intentionally in front of the officers" and verbally threatening them. 

(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-19 and that she hoped Williams would die. SCPO Agosto 
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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 pertained 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 only procedural defense 

that pertains to the remaining charges that are the subject matter of this appeal 

is that charges *.803/*.002 and *.050 were not supported by substantial evidence 

in the record. 

After hearing the testimony, reviewing the evidence, and considering 

appellant's defenses, the DHO amended the *.002 charge to prohibited acts 

*.803/*.002 and the *.050 charge to prohibited act .709, and found appellant 

guilty of the amended charges. The DHO noted the seriousness of the pandemic, 

the dangers posed by COVID-19, and the evidence that appellant intentionally 

coughed on Williams. The DHO imposed sanctions of 185 days of 

administrative segregation, 100 days loss of commutation time, 20 days loss of 

recreation privileges, and 15 days loss of telephone privileges. 
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Appellant administratively appealed the DHO's decision. Appellant 

argued that the alleged facts 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 guilty finding and the sanctions 

imposed. This appeal followed. 

Pertinent to this appeal, appellant 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 by an Inmate Constitute an Assault 

Under the Code and [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 not supported by substantial credible evidence in the record as a whole." In 
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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. Div. 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 disciplinary 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, 480 (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 statement 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. if 
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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 witnesses but declined to do so. Appellant received all 

the process she was due. We discern no denial of due process. 

Appellant's argument 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 communicable 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-V-2 virus into the air when they 

exhale (e.g., quiet breathing, speaking, singing, exercise, coughing, sneezing)." 

Indoor Air and Coronavirus (COVID-19), U.S. Env't Prot. Agency (Dec. 15, 

2021), https://www.epa.gov/coronavirus/indoor-air-and-coronavirus-covid-19. 
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depending on whether the victim suffers bodily injury). The crime of throwing 

a bodily fluid at a law enforcement officer "is a species of assault . . . ." Cannel, 

N.J. Criminal Code Annotated, cmt. on 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 evidence 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 agency'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 committed prohibited acts 

*.803/*.002 and .709. Here, the observations of the multiple eyewitnesses, 

coupled with appellant's statements during the incident, provided both direct and 
10 A-3719-19

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 they lack sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.