TYRONE BARNES v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3493-05T23493-05T2

TYRONE BARNES,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

__________________________________

 

Submitted October 16, 2006 - Decided November 2, 2006

Before Judges S.L. Reisner and C.L. Miniman.

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

Tyrone Barnes, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner-appellant Tyrone Barnes, an inmate at Trenton State Prison, was charged with violations of prohibited act *.352, counterfeiting, forging, or unauthorized production of an official document, and prohibited act *.704, perpetrating a fraud or deception. The written charge was served on Barnes on January 19, 2006, and he received a hearing four days later, which was postponed for a week in order to gather evidence. He was found not guilty of the *.704 violation and guilty of the *.352 violation. He received ten days of detention, ninety days of administrative segregation, and sixty days loss of commutation time. A timely internal appeal was filed and the sanctions were upheld on February 8, 2006.

Barnes raises the following issues on appeal:

POINT I - ABSENT THE SUBSTANTIAL OF EVIDENCE BEING MET, HEARING OFFICER ALSO VIOLATED APPELLANT'S DUE RIGHT TO CONFRONT AND CROSS EXAMINE CHARGING STAFF MEMBER.

POINT II - APPELLANT WAS ADJUDICATED GUILTY OF INCORRECT PROHIBITED ACT.

POINT III - A STAY SHOULD BE GRANTED, WHERE THERE IS A STRONG LIKELIHOOD OF SUCCESS OF THE APPEAL, AND OTHERWISE, APPELLANT WILL SUFFER IRREPARABLE HARM IF A STAY IS NOT GRANTED.

The relevant facts are these: Barnes had been incarcerated at Northern State Prison, but was transferred on June 21, 2005, to Trenton State Prison for administrative segregation following a finding that he had violated prohibited act *.009, possession or misuse of a cellular phone. The current dispute arose out of the alleged loss of personal property occurring during the transfer. When Barnes received his personal property on August 16, 2005, he claimed that he noticed that numerous items were missing from the original property inventory sheet dated May 15, 2005, specifically, a television, a radio, a Walkman, and a file of diskettes.

On August 18, 2005, Barnes completed an Inmate Claim For Lost, Damaged, or Destroyed Personal Property. He listed the above property and, in answer to question number six, in order to prove his claim that he had the property, he referenced "see DA-1 through -7 attached." One of the attached documents, DA-2, was a sales receipt from the Northern State Prison Canteen reflecting the purchase of a Magnavox color TV, a Sony AM/FM stereo radio, and a cassette player. The total purchase price was $191.40, leaving a spendable balance in Barnes's account of $3334. The sales order identification number was 2756391.

In order to investigate the veracity of the presented document, the social worker who was investigating the claim obtained from the Northern State Prison Canteen a copy of its sales order identification number 2756391. That sales order reflects the purchase of Louisiana Hot Sauce, strawberry jelly, graham crackers, instant oatmeal, Vienna Finger cookies, and sardines. The spendable balance after sale was $47.40. Both sales receipts are dated March 31, 2005.

The document submitted by Barnes is patently an altered document. The lines above and below the purchased items are not parallel and the top of the form has been cut off in duplicating the form. The State proved that Barnes never had $3,334 in his spendable account and, as a consequence, the hearing officer concluded that Barnes had violated *.352.

N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citation omitted). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Appellant's arguments are without sufficient merit to warrant extensive discussion in this opinion. Rule 2:11-3(e)(1)(D) and (E). The final administrative decision issued by the Department of Corrections is supported by substantial, credible evidence in the record. See Henry, supra, 81 N.J. at 579-80. Moreover, appellant was provided with adequate due process protections in the processing and hearing of the charge filed against him. See Avant, supra, 67 N.J. at 525-33. We add only that it was not relevant whether Barnes actually did have a television or any of the other property. The document he submitted to prove his claim was clearly fabricated whether he lost the property or not.

Affirmed.

 

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A-3493-05T2

November 2, 2006