NOT FOR PUBLICATION WITHOUT THE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.
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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
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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,
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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
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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.
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