SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1241-19

KEVIN JONES,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

Submitted February 9, 2022 – Decided March 23, 2022

Before Judges Hoffman and Whipple.

On appeal from the New Jersey Department of 

Corrections.

Kevin Jones, appellant pro se.

Andrew J. Bruck, Acting Attorney General, attorney 

for respondent (Donna Arons, Assistant Attorney 

General, of counsel; Tasha Marie Bradt, 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NOT FOR PUBLICATION WITHOUT THE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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Petitioner, Kevin Jones, an inmate in New Jersey State Prison (NJSP) 

appeals from the August 13, 2019 final state agency decision, which upheld 

the hearing officer's finding that petitioner was guilty of committing prohibited 

act *.256 – disobeying a direct order from a staff member. We affirm.

On July 18, 2019, during a scheduled interview with Assistant 

Superintendent Emrich, petitioner became agitated and attempted to leave the 

room. Lieutenant Sangale ordered him to remain seated during the interview, 

but despite these repeated commands, petitioner left the room stating "fuck it, 

you all can have this shit." Officer Legore attempted to call petitioner back as 

he left the room, but he continued to walk away. Lieutenant Sangale reported 

the incident to North Sergeant Watters. Department of Corrections 

(Department) staff searched petitioner and placed him in handcuffs, and 

medical staff cleared him for placement in pre-hearing detention. Department 

staff issued petitioner a charge for *.256, refusing to obey the order of any 

staff member. The following day, Department staff served the disciplinary 

charge on petitioner, investigated, and referred the charge to a Disciplinary 

Hearing Officer (DHO) for further action. The disciplinary hearing began on 

July 22, 2019, but was postponed, pending a mental health evaluation. 
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Petitioner pleaded not guilty to the charge against him, and requested the 

assistance of counsel substitute, which was granted. 

Petitioner and counsel substitute were granted the opportunity to make a 

statement on his behalf. Petitioner maintained that he was never told to remain 

seated. Petitioner was offered the opportunity to request witness statements 

and to cross-examine adverse witnesses. After initially requesting a 

confrontation, petitioner rescinded his request and declined the opportunity to 

request witness statements. After considering all the testimony presented and 

evidence proffered, the DHO found petitioner guilty of prohibited act *.256. 

The DHO noted custody personnel reported that during a scheduled interview, 

petitioner "became agitated [and] started to walk out of the room, despite 

orders to sit back down." The DHO emphasized that while petitioner initially 

made requests for additional information and confrontation, he rescinded his 

requests several minutes later. The DHO ultimately concluded that petitioner 

failed to provide any evidence to support his claims or discredit staff reports. 

Petitioner was sanctioned with forty days' loss of commutation time; 

thirty days' administrative segregation; sixty days' suspension; and twenty 

days' loss of phone privileges. In imposing these sanctions, the DHO reasoned 

petitioner "appeared to accept no responsibility for his actions." The DHO 
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also emphasized that "the orders were reasonable," that petitioner should have 

complied, and that he must be held responsible for his non-compliance.

Petitioner administratively appealed the decision of the DHO, arguing 

that his due process rights were violated. On August 13, 2019, NJSP Assistant 

Superintendent Emrich upheld the decision of the DHO, finding that the 

hearing officer complied with the New Jersey Administrative Code and that 

the preponderance of the evidence presented supported the guilty decision. 

This appeal followed wherein petitioner raised the following arguments: 

POINT I.

APPELLANT WAS DENIED CONFRONTATION 

WITH HIS ACCUSER IN VIOLATION OF 10A:14-

9(a). 

POINT II. 

DHO T. CORTES TOOK ON ROLE OF 

PROSECUTOR .

POINT III. 

HEARING OFFICER'S DECISION WAS BOTH 

ARBITRARY AND CAPRICIOUS AND THE 

DECISION WAS NOT BASED ON SUBSTANTIAL 

CREDIBLE EVIDENCE IN VIOLATION OF 

CLEARLY ESTABLISHED LAW PURSUANT TO 

WOLFF V. MCDONNELL AND AVANT V. 

CLIFFORD.

POINT IV.

THE DISCIPLINARY REPORT BY SGT. WATTERS 

SHOULD HAVE BEEN DISMISSED SINCE SGT. 

WATTERS DID NOT WITNESS THE ALLEGED 
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INFRACTION AND SGT. WATTERS USED 

HEARSAY INFORMATION AS THE BASIS FOR 

PROBABLE CAUSE WHICH VIOLATED 

APPELLANT[']S RIGHT TO BE TREATED FAIR 

AND IMPARTIAL BY ALL DEPARTMENT OF 

CORRECTIONS STAFF. 

POINT V.

APPELLANT['S] FEDERAL AND STATE DUE 

PROCESS RIGHTS WERE VIOLATED BECAUSE 

THE DISCIPLINARY HEARING OFFICER DID 

NOT COMPLY WITH THE PROCEDURAL 

SAFEGUARDS THAT ENSURE THAT 

APPELLANT RECEIVES A FAIR AND 

IMPARTIAL HEARING AND THE FINDING OF 

GUILT WAS NOT BASED ON SUBSTANTIAL 

CREDIBLE EVIDENCE.

POINT VI.

THE CUMULATIVE EFFECT DENIED 

APPELLANT HIS CONSTITUTIONAL RIGHTS TO 

A FAIR HEARING, DUE PROCESS AND EQUAL 

PROTECTION UNDER THE LAW.

Our review of final administrative agency decisions is limited. Malacow 

v. N.J. Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018). An 

administrative agency's decision will not be reversed unless it is "arbitrary, 

capricious or unreasonable or it is not supported by substantial credible 

evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 

571, 579-80 (1980). "'Substantial evidence' means 'such evidence as a 

reasonable mind might accept as adequate to support a conclusion.'" Figueroa 
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v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In 

re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). We have reviewed 

the record and reject each of petitioner's arguments.

Petitioner argues that he was denied confrontation with his accuser in 

violation of N.J.A.C. 10A:4-9.14(a). However, he rescinded his request for 

confrontation by stating that he "d[id not] wan[t to] submit or request anything 

further." Confrontation must only be provided upon request of the inmate "in 

such instances . . . necessary for an adequate presentation of the evidence, 

particularly where serious issues of credibility are involved." N.J.A.C. 10A:4-

9.14(a). Petitioner initially requested such confrontation, but he rescinded this 

request and therefore was not deprived of any right to confrontation.

Petitioner argues DHO Cortes took on the role of prosecutor in not 

conducting an impartial investigation. The record demonstrates an 

investigation was conducted within forty-eight hours of the disciplinary report 

and DHO Cortes used her discretion under N.J.A.C. 10A:4-9.6 and determined 

that further investigation was not necessary because the facts were sufficient to 

set forth a basic understanding of the incident. We discern no impartiality.

Petitioner also argues that the DHO's decision violated the "arbitrary and 

capricious" standard and that the DHO failed to explain why she found the 
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officers' reports more credible, which violated his due process rights. Officers 

Hunter and Legore witnessed the incident, and Officer Watters was 

immediately called to the scene to escort petitioner out. Based on the 

disciplinary reports signed by the officers, DHO Cortes had substantial 

evidence from these three corroborative reports – as well as the findings from 

Sgt. Bezek's investigative report – to support her finding. 

Petitioner argues Officer Watters' reporting of the incident should be 

dismissed since Watters did not personally witness the incident; however, the 

Administrative Code provides that either "the DOC staff member . . . who 

witnessed it or who has probable cause to believe that a prohibited act has 

occurred shall prepare Form 259 . . . ." N.J.A.C. 10A:4-9.1(a). In Weston v. 

State, 60 N.J. 36, 51 (1972), the Court ruled "that a fact finding or a legal 

determination cannot be based upon hearsay alone." However, the Court in 

Weston went on to say "[h]earsay may be employed to corroborate competent 

proof . . . . But . . . there must be a residuum of legal and competent evidence 

to support it." Ibid. Here, Watters had sufficient evidence to complete the 

disciplinary report, as he was called to the scene to escort petitioner and had 

reviewed the firsthand reports of the incident authored by witnesses Officers 

Legore and Sangale. 
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Petitioner next argues he was denied due process. This argument fails 

for the same reasons that his earlier argument for confrontation failed. 

Although inmates are not entitled to the same due process protections as 

criminal defendants, they are guaranteed certain limited protections. See

McDonald v. Pinchak, 139 N.J. 188, 194 (1995); Avant v. Clifford, 67 N.J. 

496, 523 (1975). Here, petitioner was given written notice of the charge at 

least twenty-four hours before the hearing, he was provided with counsel 

substitute, and he was offered an opportunity to call and confront witnesses. 

By his own account, petitioner was afforded every due process right available 

to him through the Administrative Code. His hearing was postponed upon 

request so that the hearing officer could review petitioner's mental health 

disciplinary report. His sanctions were imposed after consideration of 

N.J.A.C. 10A:4-9.17(a) and careful review of his history with mental illness. 

Petitioner 's final argument that the cumulative error doctrine applies 

must fail since he failed to show a single error with any of his other arguments. 

Affirmed.