RONALD GROSSMAN 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NOT FOR PUBLICATION WITHOUT THE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-3819-04T13819-04T1

RONALD GROSSMAN,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent-Respondent.

_____________________________________________________

 

Submitted March 20, 2006 - Decided March 29, 2006

Before Judges C.S. Fisher and Humphreys.

On appeal from the Final Administrative Determination of the State of New Jersey, Department of Corrections, No. 438096B.

Ronald Grossman, appellant, pro se.

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

PER CURIAM

Appellant is an inmate of the New Jersey State Prison in Trenton. He appeals the final determination of the Department of Corrections (Department), which concluded that appellant violated prohibited act *.101, escape, N.J.A.C. 10A:4-4.1, and which imposed administration sanctions of 15 days of detention, 365 days of administration segregation, and 365 days loss of commutation time. We reject appellant's arguments on appeal, and affirm.

The record on appeal demonstrates that appellant was serving a five-year term of imprisonment for criminal attempt when, on December 14, 2000, he escaped from a halfway house. Appellant was later arrested in Pennsylvania, and incarcerated there for some other offense. When New Jersey officials learned that appellant was in custody in Pennsylvania, he was charged with criminal escape. Appellant was later convicted of criminal escape and, on August 12, 2004, sentenced to a three-year term of imprisonment. When appellant was done serving time for the Pennsylvania matter in February 2005, he resumed serving the remainder of his sentence on the criminal attempt conviction as well as the three-year term of imprisonment on the escape conviction.

Also, upon his return to the custody of the Department, appellant was charged with the disciplinary infraction of "violating the Department's rules by escaping from [the halfway house] on December 14, 2000" in violation of prohibited act *.101, escape. A hearing was commenced on March 1, 2005, but adjourned to March 10, 2005. The hearing officer found that appellant had, in fact, escaped from the halfway house on December 14, 2000, and recommended that appellant receive administration sanctions of 15 days of detention, 365 days of administration segregation, and 365 days loss of commutation time.

Appellant administratively appealed, claiming a deprivation of due process. Specifically, appellant argued that "the author of the disciplinary charge [Conney Fletcher] was not an employee of Tully House at the time of the escape, and therefore did not have first hand knowledge of the incident, rendering her written testimony . . . hearsay." Appellant also argued that (1) he had requested an adjournment of the hearing that was denied and that the hearing officer's decision did not accurately reflect this; (2) that his rights to notification contained in N.J.A.C. 10A:4-9.2 were denied; (3) that his hearing scheduling rights, contained in N.J.A.C. 10A:4-9.8 were violated; and (4) that he was not served with the charge within forty-eight hours of his arrival at the Department's Central Reception and Assignment Facility. The Department upheld the hearing officer's determinations.

On appeal from this final decision, appellant asserts the following arguments for our consideration:

I. Appellant was denied notification of disciplinary charge and never [received] copy of charge prior to disciplinary hearing.

II. Appellant was denied his due process rights to [receive] written notice of disciplinary charge.

III. The reporting staff member never witnessed the alleged incident.

IV. Appellant was arbitrarily denied the right to confront/cross-examine his accuser.

V. Hearing officer violated the rules concerning [continuances] to stay within the provisions of the seven (7) day(s) [require-ment] concerning hearing schedule/time limits.

VI. Administrator rubber stamped the appeal never providing an expressed reasoning of found facts to determine a guilty finding.

VII. Hearing Officer used voided documenta-tion as evidence to secure guilty finding.

VIII. New Jersey Department of Corrections [cannot] bank sentences to be served at their [convenience].

IX. New Jersey Department of Corrections Special Investigation Division has refused to give documentation requested under [Section] 10A [of the New Jersey Administra-tive] Code.

We affirm because we are satisfied, after closely scrutinizing the record, that the decision of the Department was supported by sufficient credible evidence on the record as a whole, R. 2:11-3(e)(1)(D), and that appellant's other legal arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We add only the following brief comments regarding appellant's Points I and II.

We preface our comments regarding appellant's claim of a denial of procedural due process by observing that inmates in this setting are not entitled to the full spectrum of rights that are due to an individual upon being accused of a crime. Avant v. Clifford, 67 N.J. 496, 522 (1975). This is because of the need to "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald v. Pinchak, 139 N.J. 188, 202 (1995).

Appellant contends he was denied the right to receive written notice of the charges at least twenty-four hours prior to the hearing. Avant, supra, 67 N.J. at 525. However, the record on appeal demonstrates that appellant was served with a copy of the charge at 9:20 a.m. on February 28, 2005, and although his hearing was originally scheduled for March 1, 2005, the hearing was postponed to and reconvened on March 10, 2005. Thus, appellant had ample time to learn of the charges that were brought against him prior to their adjudication.

Appellant also contends that he was not provided with a copy of the charges within forty-eight hours following the violation. N.J.A.C. 10A:4-9.2 requires that "[t]he disciplinary report shall be served upon the inmate within 48 hours after the violation unless there are exceptional circumstances." Obviously, since the charge was that appellant had escaped, it was not possible for the Department to provide a copy of the charges within forty-eight hours of the violation.

Appellant also claims that N.J.A.C. 10A:4-9.2 requires that he be served with a copy of the charges within forty-eight hours of his return to the custody of the Department. The Department concedes that appellant was not served with the charge until the third day of his return to its custody. The Department argues, however, and we agree, that this brief delay was de minimis, and the Department's failure to strictly comply with the requirements of the rule in this regard does not mandate the dismissal of the charge. N.J.A.C. 10A:4-9.9(a).

Affirmed.

 

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A-3819-04T1

March 29, 2006