CHRIS THOMAS v. STATE OF 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NOT FOR PUBLICATION WITHOUT THE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-002104-04T5002104-04T5

CHRIS THOMAS,

Appellant,

v.

STATE OF NEW JERSEY

DEPARTMENT OF CORRECTIONS,

Respondent.

 

Submitted October 12, 2005 - Decided January 10, 2006

Before Judges Winkelstein and Francis.

On appeal from the final administrative decision of New Jersey Department of Corrections.

Chris Thomas, appellant pro se.

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

PER CURIAM

Appellant Chris Thomas, an inmate at East Jersey State Prison, appeals a final decision of the New Jersey Department of Corrections upholding a violation of a prohibited act: misusing or possessing electronic equipment not authorized for use or retention by an inmate as specifically proscribed in N.J.A.C. 10A:4-4.1(a)(*.009). For the infraction, the hearing officer recommended that the contraband be confiscated, fifteen days of detention with credit for time served, 365 days of administrative segregation and 365 days loss of commutation time. The findings and sanctions were upheld in an internal administrative appeal by the prison administrator's designee, assistant superintendent Trent.

N.J.A.C. 10A:4-4.1(a)(*.009) prohibits particular inmate conduct including, "misuse or possession of electronic equipment not authorized for use or retention by an inmate such as, but not limited to, a cellular telephone(s), two-way radio(s), other communication device(s) and/or computer(s) and/or related device(s) and peripheral(s)."

When a violation occurs, prisoners' basic due process rights remain intact and procedural safeguards are in place to ensure fairness. See Jones v. Dep't of Corr., 359 N.J. Super. 70, 75 (App. Div. 2003). To ensure proper review on appeal, the hearing officer must disclose the reasons supporting the final disposition of the matter. Balagun v. Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003). The level of detail required to support that decision is lower than that required in most other types of proceedings. Johnson v. Dep't of Corr., 375 N.J. Super. 347, 353 (App. Div. 2005); Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). Absent a showing that such information would have a negative impact on prison security, the written statement must include: the hearing officer's disposition; the evidence relied on; the reason for the decision; and, if applicable, any reasons for refusing to call a witness, refusing to disclose items of evidence, and denying cross examination. N.J.A.C. 10A:4-9.24; Negron v. Dep't of Corr., 220 N.J. Super. 425, 431-32 (App. Div. 1987).

On review of a disciplinary appeal, the prison administrator may rescind the hearing officer's decision based on failure to follow procedural safeguards or where certain evidentiary issues arise. N.J.A.C. 10A:4-11.5(a)(1)-(2). Additionally, the prison administrator may downgrade the sanctions or order a new hearing if the evidence supports only a lesser offense, rather than the offense charged. N.J.A.C. 10A:4-11.5(a)(3)-(4).

Due process in disciplinary hearings includes a requirement that determinations of guilt be based on "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). The Appellate Court's role in cases such as this is limited in that it must uphold findings supported by substantial, credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980); Johnson, supra, 375 N.J. Super. at 352. Here, the hearing officer's findings, grounded on substantial credible evidence, are binding on appeal. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The charges arose after a correctional officer found a letter in the vicinity of the inmate's cell addressed to "Chewy," whom the officer believed to be inmate Thomas. The letter contained information regarding the use of a cellular telephone with a head-set. A search of Thomas's cell revealed a head-set for use with a cellular phone.

The evidentiary record on the charge included the Authorization for Pre-hearing detention, Seizure of Contraband report, photograph of contraband, reports from correctional officers, the letter, and a photograph of the inmate. Appellant pled not guilty to the charges, and was given the opportunity to present witnesses, to testify at the evidentiary hearing, and to confront and cross examine any adverse witnesses, all of which he declined. Appellant's counsel substitute requested an adjournment of the hearing in order to ascertain whether there was another inmate named "Chewy," and requested that the charges be downgraded. Both requests were denied.

Appellant contends that there was no substantial evidence of guilt presented at the hearing below and that the hearing officer failed to adequately set forth the reasons for his decision. We disagree.

In finding appellant guilty of the charge, the hearing officer relied on all of the evidence presented by the department of corrections and determined the same to be credible. Appellant presented no evidence.

In his decision, of which a copy was provided to appellant, the hearing officer found the "charge by SCO Trippe as credible and . . . supported by seizure of contraband form, 2 photocopies of cell phone earpiece, SCO Trippe special [report], Sgt. Newsom [special report], inmate seizure form, SCO Albano [special report], found letter for probable cause to search, and inmate photo." The hearing officer's rationale for the sanctions was "to deter use of electonic [sic] devices in maximum security prison. Probable Cause is evident, inmate found in possession."

Appellant argues that the headset was used only in conjunction with a walkman and no cellular telephone was found. On administrative appeal, the decision of the hearing officer was upheld as "[t]here was compliance with the New Jersey Administrative Code on inmate discipline which prescribes procedural safeguards. The decision of the Hearing Officer was based upon substantial evidence".

 
We reject, as unsupported by the record, appellant's contentions that his due process rights were violated and that the hearing officer failed to articulate facts establishing guilt. We affirm for the reasons set forth in the hearing officer's decision.

N.J.A.C. 10A:4-4.1(a)(*.009) was recently modified. Currently, it prohibits "misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention." N.J.A.C. 10A:4-4.1(a)(*.009). Section 10A:1-2.2 defines electronic communication device as,

a device or related equipment or peripheral that is capable of electronically receiving, transmitting or storing a message, image or data. Examples . . . include, but are not limited to, all types and sizes of a computer, telephone, two-way radio, camera or video/audio player/recorder, fax machine, pager or beeper, personal data assistant, hand-held e-mail system, or any other device containing a means of internet access or receiving, transmitting or storing information electronically by means of audio, visual or recorded data.

This change is not relevant with respect to the facts of this case.

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A-2104-04T5

January 10, 2006