WILLIAM DELANGE v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1557-05T51557-05T5

WILLIAM DELANGE,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________________

 

Submitted May 17, 2006 - Decided June 30, 2006

Before Judges Conley and Sapp-Peterson.

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

William Delange, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Walter Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. William Delange, an inmate currently confined at East Jersey State Prison in Rahway, appeals a final determination of the Department of Corrections (DOC) removing him from his job in the prison commissary because he failed to perform work as instructed by staff members, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

The record discloses that Delange, who is in his early sixties, was assigned to the prison commissary sometime in 2003. On September 15, 2005, the Instructional Trade Instructor (ITI), Jimmy Sierra, and the Civilian Storekeeper Two, Jim Melnicki, instructed Delange to take out the garbage, which was in large plastic bags. Removing the garbage at the end of the day was part of Delange's daily job responsibility in the commissary. On that day, Delange did not remove the garbage. Instead, he left after another inmate stated Officer Lawz wanted the inmates to leave the area. Delange was charged with failing to perform work as instructed by a staff member in violation of N.J.A.C. 10A:4-4.1(a).303.

A disciplinary report was delivered to Delange, who pled not guilty to the charge. An investigation into the charge was conducted by Sergeant Richard Solunt. Delange did not request that Solunt interview any witnesses, nor did he request the assistance of a counsel substitute at that time. Solunt forwarded the charges for resolution before a hearing officer.

A hearing was conducted on September 18, 2005. Delange requested a counsel substitute, which was denied. By way of explanation for his conduct, Delange stated:

What I have been told is when the trash is ready, I let [the ITI's] know and they get back to me. On that day I told Jim [Melnicki, Storekeeper 2], he acknowledged me. An inmate came out later and said for everyone to go. I knocked on the window and told Jim everyone was leaving. He shook his head "no." I left, because [Officer] Lawz wants everyone to leave at the same time.

Delange did not request the appearance of any witnesses, nor an opportunity to question Melnicki or Sierra. The hearing officer found Delange guilty of the charge and recommended a job review by the Prison Classification Committee. Delange administratively appealed the hearing officer's decision the next day. On September 23, 2005, the decision of the hearing officer was upheld. Delange was assigned out of the commissary, effective September 28, 2005.

On appeal, Delange raises one point for our consideration:

APPELLANT WAS DENIED HIS RIGHT TO CALL WITNESSES WHO COULD HAVE ASSISTED THE DISCIPLINARY HEARING OFFICER TO DECIDE IF APPELLANT'S MEDICAL CONDITION PREVENTED HIM FOR PERFORMING WORK AS WAS INSTRUCTED.

In his brief, Delange claims that in the past, he had explained to Melnicki and Sierra that his medical condition prevented him from lifting anything over ten pounds, but on September 15, 2005, they both approached him to throw out the trash bags at the end of the day. Delange also contends that before Melnicki and Sierra wrote their reports about the incident, he asked them to contact the medical department to check his medical records, but defendant claims neither of them took the time to verify what they already knew.

After carefully reviewing the record, we are satisfied that Delange's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D), (E). The final administrative decision issued by the DOC is supported by substantial, credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We add only the following.

In denying Delange's request for a counsel substitute at the hearing, the hearing officer noted that "Delange has some college, he is in population and can prepare a defense." The hearing officer also noted that the charge was not serious or unusually complicated. Moreover, Delange did not request that any witnesses be interviewed as part of the investigation or produced for the hearing. In addition, Delange did not request an opportunity to question adverse witnesses. We are satisfied that Delange was provided with adequate due process protections in the processing and hearing of the charge filed against him. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975).

Finally, during the investigation, at his hearing, and in his administrative appeal, Delange's defense to the charge was limited to an apparent misunderstanding as to whether he should have left the commissary when another inmate indicated that Officer Lawz wanted the inmates to leave the area. His claimed medical disability and the refusal of anyone to verify his condition are raised for the first time on appeal. These contentions are neither jurisdictional nor issues of great public importance. We therefore decline to consider them on this appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

 

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5

A-1557-05T5

June 30, 2006