JEROME WHITE v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0147-05T30147-05T3

JEROME WHITE,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent-Respondent.

____________________________

 

Submitted May 31, 2006 - Decided June 13, 2006

Before Judges Collester and S.L. Reisner.

On appeal from a Final Agency Decision of the Department of Corrections.

Jerome White, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Jerome White, an inmate at New Jersey State Prison, appeals from a final determination of the Department of Corrections imposing discipline for infraction of an institutional rule. We affirm.

White was issued a disciplinary report on May 15, 2005, for prohibited act *.009 (possession of unauthorized electronic equipment), after a search of his cell revealed a cell phone and charger hidden in two containers of peanut butter. See N.J.A.C. 10A:4-4.1(a). After a hearing at which White was permitted to confront and cross-examine the reporting officer, the charges were upheld. He received 15 days of disciplinary detention, 365 days administrative segregation, 365 days loss of commutation time, 365 days loss of telephone privileges and confiscation of the contraband. He filed an administrative appeal to the prison administrator on July 28, 2005, which was denied as untimely because, although White obtained an extension of time to file his appeal, he did not submit the appeal by the July 27 extension deadline.

On this appeal, White raises the following issues:

POINT I: DUE TO THE LACK OF DUE PROCESS ENCOMPASSING THIS MATTER, THE FINAL DECISION OF THE DISCIPLINARY HEARING OFFICER SHOULD BE REVERSED BECAUSE APPELLANT'S DISCIPLINARY HEARING DID NOT COMPORT WITH ALL PROCEDURAL DUE PROCESS REQUIREMENTS AND SAFEGUARDS.

POINT II: THE DECISION OF THE HEARING OFFICER VIOLATES APPELLANT'S RIGHT TO DUE PROCESS AND IN THE INTEREST OF JUSTICE SHOULD BE VACATED.

A. The Decision of the Hearing Officer Should be Vacated Because The Evidence Presented At The Disciplinary Hearing Was Insufficient To Sustain A Guilty Finding Based on "Substantial Evidence" Thus Denied Appellant Due Process Under The Fourteenth Amendment To The United States Constitution.

POINT III: THE HEARING OFFICER'[S] DECISION FAILED TO ARTICULAT[E] FACTS ESTABLISHING THE APPELLANT'S GUILT AND TO PROVIDE A SUFFICIENTLY DETAILED ANALYSIS OF THE EVIDENCE AND TO STATE WHY HE REJECTED APPELLANT'S CONTENTION.

POINT IV: THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE VACATED AND REVERSED DUE TO ANSWERS PROVIDED BY THE REPORTING OFFICER DURING THE CONFRONTATION CROSS-EXAMINATION HEARING THAT SUPPORTED APPELLANT'S INNOCENCE IN THIS MATTER.

Having reviewed the record, we conclude that these contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and that the agency's decision is supported by substantial credible evidence. R. 2:11-3(e)(1)(A); Henry v. Rahway State Prison, 81 N.J. 571 (1980). We add the following comments.

White contends that the prison violated N.J.A.C. 10A:4-9.8 by delaying his hearing for eight days while he was in pre-hearing detention, rather than according him a hearing within the three days required by the regulation. The record reflects that the hearing was first delayed because of a lock-down in the institution, then by various requests by the inmate and his counsel substitute, and later due to the transfer of his counsel substitute to another prison. We conclude the institution has provided a reasonable explanation for the delay in holding the hearing. See N.J.A.C. 10A:4-9.8.

White also argues that there was not substantial evidence to sustain the charge, citing N.J.A.C. 10A:4-9.15. He contends that the reporting officer did not find the contraband in his cell and fabricated the evidence. In support of that argument, he contends that the prison commissary did not sell cans of peanut butter; however, the reporting officer testified that the containers were plastic and of the type sold in the commissary. The hearing officer credited the reporting officer's testimony, and we find no basis in the record to interfere with the agency's credibility determination.

Affirmed.

 

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A-0147-05T3

June 13, 2006