MICHAEL BARCALOW 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NOT FOR PUBLICATION WITHOUT THE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-1721-05T21721-05T2

MICHAEL BARCALOW,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent-Respondent.

_________________________________________________

 

Submitted August 29, 2006 - Decided September 8, 2006

Before Judges Payne and Gilroy.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Michael Barcalow, appellant, filed a pro se brief.

Zulima V. Farber, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel, Christopher C.

Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Michael Barcalow appeals from a final agency decision of the New Jersey Department of Corrections imposing disciplinary sanctions, consisting of fifteen days of detention, ninety days of administrative segregation, sixty days of loss of commutation time, and possible transfer to a more secure correctional facility, for violation of prohibited act .210 "possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels." N.J.A.C. 10A:4-4.1.

The charge was based upon the discovery, during a routine search of Barcalow's cell conducted on October 28, 2005, of two sheets of yellow, lined paper secreted under his mattress. On one was drawn a map of a U-shaped building with entrance and stairs, surface parking spaces, a dumpster, and a two-lane encircling road. On the other was printed the following questions:

How many sheriffs/co's [corrections officers] on way down stairs?

How many doors on upper level before going down stairs?

Doc [sic] have guns?

Are there guns inside?

How old are they and are they in good shape?

Are any doors locked?

On October 29, 2005, Barcalow was charged with *.101 "escape." N.J.A.C. 10A:4-4.1. Barcalow pled not guilty to the charge. Hearings were scheduled on October 31, November 2, November 4, November 7 and November 9 that were adjourned for further investigation, and a hearing was conducted on November 10, 2005 before hearing officer Zane Maguire. It was initially thought that the map found in Barcalow's cell depicted the Ocean County Courthouse, to which Barcalow was frequently taken for court proceedings in open matters. When Barcalow denied that fact and investigation confirmed that the Ocean County Courthouse was not the subject of the map, the charge was amended to .210, possession of materials not authorized for retention or receipt. Barcalow was advised of the revised charge at the hearing and waived the twenty-four hour period available to him to prepare for the new charge.

At the courtline hearing, Barcalow, represented by counsel substitute, provided testimony in which he claimed that the papers, admittedly authored by him, constituted notes for stories that he intended to send to his brother, a published author. He denied that they were escape plans, stating that his parole review was scheduled in eight months, and that as a result it was "inconceivable" that he would consider escaping. He declined the opportunity to call adverse witnesses.

Barcalow, whom the hearing officer did not find credible as the result of misstatements with respect to his record, was adjudicated guilty and sentenced as we have specified. The adjudication and sentence were affirmed on appeal to the Department of Corrections.

On appeal to us, Barcalow's argument in its entirety is as follows:

Violation of due process and equal protection under state law.

Violation of applicable state regulations, denying appellant due process and state law created Liberty interest.

The decision of the prison administrator was not adequately supported by the substantial creditable evidence in the administrator record.

The first amendment gives me the right to write down my thoughts and to draw what's in my imagination, without having it perceived to be something more than what it really is.

In order for that drawing to be considered a map, the D.H.O., S.I.D., or anyone else must be able to tell me or the court, where that location is. If they are unable to do that, then they shouldn't be able to consider it a map of anything.

Everything that was used as evidence against me was based on misguided conclusions, assumptions and mere guesses.

We affirm, finding the conclusions of the hearing officer to have been adequately supported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980); see also McDonald v. Pinchak, 139 N.J. 188, 195 (1995); N.J.A.C. 10A:4-9.15(a). The papers seized following a search of Barcalow's cell provided evidence of a plan for escape, an activity prohibited by N.J.A.C. 10A:4-4.1 *101. The possession of materials pertaining to such a prohibited activity clearly fell within the purview of a .210 offense. That the materials could not be identified as relating to a specific location may have been sufficient to cause a reduction in the charge against Barcalow. However, we find the lack of identification insufficient to render the materials an inadequate foundation for the reduced charge. In this regard, we note the rejection by the hearing officer of Barcalow's explanation of the materials, finding Barcalow's statements to be incredible. We have no basis for disturbing that credibility determination. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). This is not a case in which support for the hearing officer's conclusions is absent. Compare Johnson v. Dept. of Corrections, 375 N.J. Super. 347, 353 (App. Div. 2005); Blackwell v. Dept. of Corrections, 348 N.J. Super. 117, 123 (App. Div. 2002).

Additionally, our careful review of the record satisfies us that Barcalow was accorded the requisite due process in the proceedings against him, Avant v. Clifford, 67 N.J. 496, 525-33 (1975), and that the delays in his hearing to permit further investigation of the charges was authorized by N.J.A.C. 10A:4-9.6 and, furthermore, resulted in a reduction of the severity of the charges that he faced. We likewise reject Barcalow's First Amendment argument. "In a prison context, an inmate does not retain those First Amendment rights that are 'inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 129, 97 S. Ct. 2532, 2540, 53 L. Ed. 2d 629, 641 (1977) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 (1974)).

We find Barcalow's remaining arguments to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The adjudication and sentence are affirmed.

 

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A-1721-05T2

 

September 8, 2006