CURTIS THOMPSON 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NOT FOR PUBLICATION WITHOUT THE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-3749-05T13749-05T1

CURTIS THOMPSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________________

 

Submitted: November 29, 2006 - Decided December 28, 2006

Before Judges A. A. Rodr guez and Collester.

On appeal from a final administrative determination of the State of New Jersey, Department of Corrections.

Curtis Thompson, appellant, pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Sean M. Gorman, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Curtis Thompson appeals from a final administrative decision by the Department of Corrections (DOC), imposing disciplinary sanctions for committing prohibited acts *.009, misuse or possession of electronic equipment, and *.207, possession of money or currency in excess of $50. We reverse and remand.

Thompson is an inmate at New Jersey State Prison in Trenton. On December 13, 2005, at approximately 4:45 p.m., Corrections Officer Trainee David D. Richards searched Thompson's cell. At the time, Richards was under the supervision of Senior Corrections Officer G. Smith. Richards found a cellular phone and two $100 bills hidden inside a hollowed out Bible. Thompson was working in another area of the prison at the time of the discovery. He was escorted to pre-hearing detention lockup.

The following day, Sergeant Daniels notified Thompson of the charges and conducted an investigation. Thompson pled not guilty. He did not make a statement or request any witnesses, but requested a counsel substitute. Daniels concluded the investigation and referred the matter to courtline for adjudication.

At the courtline hearing, Thompson pled not guilty and requested the assistance of counsel substitute. Counsel substitute W. Barron assisted Thompson.

Richards did not testify at the hearing. However, his report was considered by Hearing Officer S. Maniscalco. The report, in its entirely, reads as follows:

Subject: Cell search 2 right cell # 231 C. Thompson 263103

What: Found cellphone and (2) $100 bills $200 total

When: 12/13/05 1645 HRS

Where: 2 Right

How: On 12/13/05 at 1645 HRS I was searching housing wing 2 right cell [#] 231 housed by C. Thompson 263103 under SCO G. Smith's supervision. While conducting my search I found a cellphone and (2) $100 bills in the center of a black Holy Bible. I then submitted the found contraband to SCO G. Smith.

Richard's supervisor Smith did testify.

The Hearing Officer found Thompson guilty of both charges, and recommended the following disciplinary sanctions for the *.009 charge: fifteen days detention, 365 days administrative segregation, 365 days loss of commutation time, 365 days loss of commutation visits, and 365 days loss of commutation phone privileges. With regard to the *.207 charge: fifteen days detention, 365 days administrative segregation, and 365 days loss of commutation time, to be served consecutively. In addition, the money and cellphone seized were confiscated.

Thompson requested and was granted an extension of time to file an administrative appeal. In his administrative appeal, Thompson alleged the following:

As the reporting employee in the charges issued, Officer Smith stated that he had supervised trainee Richards during the search of cell 231, however, during the confrontation it was established that Officer Smith was 'downstairs on the flats near the Officer's desk.' By his own admission Officer Smith was not present during the search of cell 231 and could not have been supervising trainee Richards as stated in the description of the alleged infractions. To further bolster the admission of Officer Smith at the confrontation, he testified that he is unaware if trainee Richards was assisted by another trainee or supervised by any other Senior Corrections Officer other than himself, during the search of cell 231.

He also alleged that the contraband was found in an area that was accessible to other prisoners during the daytime. Assistant Superintendent Donald Mee upheld the adjudication and imposed the sanctions.

Thompson appeals to us contending:

POINT I

APPELLANT THOMPSON WAS DENIED DUE PROCESS AND FAIRNESS WHEN THE HEARING OFFICER ARBITRARILY AND CAPRICIOUSLY FOUND HIM GUILTY OF CONTRABAND FOUND IN AN OPEN COMMON AREA, BY A TRAINEE, WHO APPELLANT WAS DENIED TO CONFRONT.

According to Thompson's brief: "under cross-examination confrontation, Officer G. Smith admitted to not being present to supervise trainee Richards' search of the cell." The DOC does not dispute this. This is troublesome to us. It appears that the person who conducted the search (Richards) did not testify and his supervisor, who did testify, admitted to not being an actual eyewitness. In light of these circumstances and considering Thompson's defense that the contraband was found in a "common area," we conclude that he was denied effective confrontation of witnesses. It is settled that "the opportunities to confront one's accusers and cross-examine them, and to develop one's own proofs, are basic protections in our system of adjudication." Jones v. Dep't. of Corr., 359 N.J. Super. 70, 75 (App. Div. 2003); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973). This is especially so in prison inmate disciplinary proceedings. Jones v. Dep't of Corr., supra, 359 N.J. Super. at 75; see McDonald v. Pinchak, 139 N.J. 188, 196-99 (1995); N.J.A.C. 10A:4-9.13(a), -9.14(a). Such a basic right may not be limited in any way that dilutes them to the vanishing point. Jones v. Dep't of Corr., supra, 359 N.J. Super. at 75; see Wakefield v. Pinchak, 289 N.J. Super. 566, 571-72 (App. Div. 1996), certif. denied, 165 N.J. 677 (2000).

Here, Thompson was denied confrontation of a critical witness. Therefore, the adjudication must be reversed. The matter is remanded for a new hearing, at which an eyewitness to the search must be presented by the DOC.

The remaining contentions are:

THE HEARING OFFICER REPEATEDLY VIOLATED THE 48-HOUR RULE AND 72-HOUR RULE THUS DENYING APPELLANT DUE PROCESS TO A TIMELY HEARING.

DUE TO THE ENTIRE RECORD BEING GROSSLY HAMPERED BY THE UNDECIPHERBILITY OF MOST OF THE RECORD, THE SANCTIONS IMPOSED MUST BE REVERSED.

We are not persuaded by these contentions. In prison disciplinary matters the legitimate needs of the institution must be considered. Avant v. Clifford, 67 N.J. 496, 524-25 (1975). We conclude that the delay here was justified. Moreover, we disagree that the record was "undecipherable."

Reversed and remanded.

 

The courtline hearing was adjourned several times for the following reasons: pending receipt of a photograph of the contraband; the institution was in lock-down status; Thompson requested confrontation of Smith; and Thompson had not yet prepared his confrontation questions.

(continued)

(continued)

6

A-3749-05T1

December 28, 2006