ALEXEI LEGASSOV VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3591-18T4
ALEXEI LEGASSOV,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted April 21, 2020 – Decided May 13, 2020
Before Judges Yannotti and Firko.
On appeal from the New Jersey Department of
Corrections.
Alexei Legassov, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Travis M. Anderson, Deputy Attorney
General, on the brief).
PER CURIAM
Alexei Legassov appeals from a final decision of the New Jersey
Department of Corrections (NJDOC), which found that he committed prohibited
acts .210 and *.153, in violation of N.J.S.A. 10A:4-4.1(a), and upheld the
sanctions imposed by the departmental hearing officer. We affirm.
Legassov is an inmate in the State's correctional system. In February
2019, he was incarcerated at East Jersey State Prison (EJSP). On February 10,
2019, Officer Froehlich conducted a routine search of Legassov's cell.
Froehlich found and confiscated three twenty-four-ounce bottles, one twelve-
ounce bottle, and four V-8 juice bottles, which were hanging near the window.
According to Froehlich, the bottles were filled with a cloudy substance
and pieces of fruit. The officer reported that the substance had a "strong, sweet
[and] pungent smell." Froehlich also discovered and confiscated a large bag
weighing about two pounds, which was filled with packets of sugar.
Legassov was charged with committing prohibited act *.551, making
intoxicants, alcoholic beverages, or prohibited substances.1 Legassov also was
charged with committing prohibited act *.153, stealing. On February 11, 2019,
Legassov received notice of the charges. A corrections officer investigated the
1
Prohibited acts that are preceded by an asterisk (*) "are considered the most
serious and result in the most severe sanctions . . ." N.J.A.C. 10A:4-4.1(a).
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charges and referred the matter for further proceedings before a departmental
hearing officer.
The hearing took place on February 11, 2019. Legassov requested and
was granted the assistance of a counsel substitute. Counsel substitute requested
that the *.551 charge be reduced to a .210 charge, possession of anything not
authorized for retention or receipt by an inmate or not issued to the inmate
through regular correctional facility channels. Legassov pled guilty to the .210
charge and not guilty to the *.153 charge, stealing.
The hearing officer found Legassov guilty of committing prohibited act
*.153. The hearing officer noted that Legassov claimed he obtained the sugar
packets from the cafeteria and pointed out that he had almost two pounds of
sugar in his cell. The hearing officer stated that inmates are only given two to
four packets of sugar at a time. Moreover, Legassov admitted that he did not
receive permission to bring the sugar back to his cell.
The hearing officer found that Legassov could not have obtained the
amount of sugar that he possessed by taking two to four packets of sugar at a
time from the cafeteria within a week's time. The hearing officer also observed
that while an inmate may obtain sugar from the prison's canteen, sugar acquired
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in this manner is not provided in packets. The hearing officer stated that
Legassov's possession of the sugar was excessive and unsanitary.
In addition, the hearing officer found Legassov guilty of committing
prohibited act .210. The hearing officer noted that Legassov had numerous
bottles in his cells. The bottles labeled for V-8 juice were filled with liquids
other than juice, and the oral hygiene bottles found in Legassov's cell were filled
with something other than mouthwash.
The hearing officer found that Legassov was not authorized to possess the
substances in the bottles. The hearing officer stated that Legassov must follow
the prison's rules and regulations, and he could not put "whatever he wants in
bottles designated for other items." The hearing officer also stated that inmates
must be held accountable "for putting themselves [and] others at risk" of
unsanitary and unhealthy conditions.
The hearing officer combined the .210 charge with the *.153 charge for
purposes of determining the sanctions to impose. The hearing officer imposed
the following sanctions: ninety-five days of administrative segregation, the loss
of ninety-five days of commutation time, and the loss of fifteen days of
recreational privileges.
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Legassov filed an administrative appeal. He contended there was
insufficient evidence to support the finding that he stole the sugar found in his
cell. Legassov claimed the hearing officer had misinterpreted the facts. He
asserted inmates are not prohibited from taking sugar from the inmates' dining
room, and he did not need permission to take the sugar back to his cell since it
is part of the meals provided. He said he obtained some of the sugar packets
from other inmates, which was permissible. In addition, he asserted that the
sanctions imposed were not warranted. He stated that the sanctions are unjust
and unfair.
On February 12, 2019, Calvin L. Spires, Assistant Superintendent at EJSP,
issued a final decision upholding the hearing officer's decision. He found there
were no violations of the applicable disciplinary standards and that the hearing
officer had not misinterpreted the facts. He also found that the sanctions that
the hearing officer imposed were "proportionate" to the violations and leniency
was not warranted. This appeal followed.
On appeal, Legassov raises the following arguments:
POINT I
THE [NJDOC'S] HEARING OFFICER FAILED TO
TAKE INTO ACCOUNT [THAT] INMATES ARE
GIVEN MORE THAN [TWO] TO [FOUR] PACKETS
OF SUGAR DURING THE MESS MOVEMENTS
AND INMATES WHO [DO NOT] WANT THEIR
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SUGAR MAY DISPERSE THEIR SUGAR TO
OTHER INMATES.
POINT II
THE HEARING OFFICER ERRED IN THE
MODIFICATION OF THE CHARGE BECAUSE
THERE WAS NO EVIDENCE OF MAKING
INTOXICANTS AND THE FINDING OF GUILTY
AS TO THE .210 [CHARGE] IS DUPLICATIVE OF
THE *.153 CHARGE.
POINT III
THE HEARING OFFICER ERRED IN THE FINDING
OF GUILT BECAUSE THE APPELLANT WAS NOT
THE INDIVIDUAL LISTED ON THE
DISCIPLINARY REPORT.
Judicial review of final decisions of an administrative agency is "severely
limited." George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27
(1994) (citing Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J.
384, 390 (1983)). The court can "intervene only in those rare circumstances in
which an agency action is clearly inconsistent with its statutory mission or with
other State policy." Ibid.
In an appeal from a final decision of the NJDOC in a prisoner disciplinary
matter, we consider whether there is substantial evidence in the record to support
the NJDOC's decision that the inmate committed the prohibited act and whether,
in making that decision, the NJDOC followed the departmental regulations
governing the disciplinary process, which were adopted to afford the inmates
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procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995);
Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995).
Legassov argues that the NJDOC erred by finding that he committed
prohibited acts *.153 and .210. We disagree. Here, the hearing officer found
that Legassov did not obtain permission to remove sugar packets from the dining
hall, or permission to store a large quantity of sugar packets in his cell. The
hearing officer also found that Legassov was not authorized to possess or retain
the bottles with the milky substance that were found in his cell. There is
sufficient evidence in the record to support these findings.
Legassov also contends the hearing officer erred by modifying the *.551
charge to a charge of violating .210. He argues there was no evidence that he
was making intoxicants and the .210 charge was duplicative of the *.551 charge.
Again, we disagree.
The NJDOC's regulations provide in pertinent part that, "[w]henever it
becomes apparent at a disciplinary hearing that an incorrect prohibited act is
cited in the disciplinary report but that the inmate may have committed another
prohibited act, the Adjustment Committee or Disciplinary Hearing Officer shall
modify the charge. . . ." N.J.A.C. 10A:4-9.16(a).
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The record shows that at the disciplinary hearing, Legassov's counsel
substitute asked the hearing officer to modify the charge from *.551 to .210.
The hearing officer did not err by modifying the charge because the .210 charge
was appropriate and there was sufficient evidence to support the charge.
Moreover, the .210 charge was not duplicative of the *.551 charge. The charge
of stealing the sugar was separate and distinct from the charge pertaining to the
unauthorized possession of the liquid substances found in Legassov's cell.
Legassov further contends that the NJDOC's decision should be reversed
because in the Assistant Superintendent's decision, he is referred to by another
name. It is clear, however, that this was a typographical error. The final
decision states that the appeal is by Inmate No. 1161941, which is Legassov's
inmate number. Furthermore, the Assistant Superintendent's decision indicates
he is responding to Legassov's administrative appeal, not the appeal of another
inmate.
Affirmed.
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