MORTIMER HETSBERGER v. DEPARTMENT OF CORRECTIONS

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 4206-04T2A-4206-04T2

MORTIMER HETSBERGER,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted: November 28, 2005 - Decided January 30, 2006

Before Judges A. A. Rodr guez and Alley.

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

Mortimer Hetsberger, appellant, filed a pro se brief.

Peter C. Harvey, Attorney General, Patrick DeAlmeida, Assistant Attorney General, of counsel, Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Mortimer Hetsberger, was an inmate at East Jersey State Prison, Rahway in January 2005. He appeals from a final agency decision of the Department of Corrections imposing disciplinary sanctions upon him for committing prohibited act .256, refusing to obey an order of any staff member, N.J.A.C. 10A:4-4.1(a). We affirm.

The salient facts are as follows. On January 21, 2005, at approximately 7:15 a.m., Hetsberger was in the visiting area when the riot bell was activated. Senior Corrections Officer Mendoza saw Hetsberger move to the visiting booth's door to look out its window. Mendoza ordered Hetsberger to move away from the door. Hetsberger complied. Mendoza then ordered Hetsberger to take a seat in the visit booth. However, Hetsberger refused to comply with that order and remained standing. The order was made two more times. Hetsberger did not comply; instead, he looked at Mendoza and began talking to himself. As a result, Hetsberger was placed into pre-hearing detention and later charged with a violation of prohibited act .306, conduct which disrupts or interferes with the security or orderly running of the correctional facility.

Sergeant House immediately investigated the incident. Hetsberger denied guilt. He told House that Mendoza had never spoken to him. Instead, Mendoza used gestures. Hetsberger thought Mendoza was telling him to keep the noise down. Hetsberger requested statements from inmates Jordan and Baptiste. He also requested the assistance of a counsel substitute. Sergeant House concluded the charge had merit, but suggested downgrading to prohibited act .256, failure to obey an order.

A Courtline initial hearing was conducted by Hearing Officer Lance Meehan. The charge was modified as suggested by House. Meehan visited the area of the incident and reviewed the reports. Hetsberger called inmates Jordan and Baptiste. Jordan testified that he had not seen anything. Baptiste, who was charged with the same offense as Hetsberger, testified that they "were never ordered to sit down, the officer was using sign language." Hetsberg cross-examined Mendoza, who testified that he wanted Hetsberger to sit down and to stop watching how the prison's response team works. Mendoza stated that he was about five feet away from Hetsberger when he yelled the order to sit down. Door One to the visiting area was open, therefore his order could be heard. Hetsberger made no statements on his own behalf.

Hearing Officer Meehan found, based on his inspection of the visiting area, that "with Door One open Hetsberger could hear the order." Thus, Meehan found Hetsberger guilty of violating prohibited act .256, and recommended a sanction of fifteen days of detention and a referral to the administrator for loss of sixty days of commutation time.

Hetsberger appealed the decision. Assistant Superintendent T. M. Power upheld the adjudication of guilt, but suspended the loss of sixty days of commutation time.

Hetsberger contends that the adjudication was not supported by substantial evidence. We reject this contention which is a challenge to the credibility determination by the agency factfinder.

We have carefully reviewed the items comprising the record on appeal and the arguments submitted by Hetsberger and conclude that the disciplinary hearing comported with the necessary procedural due process requirements. See McDonald v. Pinchak, 139 N.J. 188, 198-99 (1995). We are also convinced that there was substantial evidence to support the adjudication. Avant v. Clifford, 67 N.J. 496, 530 (1975); R. 2:11-3(e)(1)(D).

 
Affirmed.

(continued)

(continued)

2

A-4206-04T2

January 30, 2006

 


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