ERNEST SCOTT 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NOT FOR PUBLICATION WITHOUT THE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-4916094T14916-04T1

ERNEST SCOTT,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________________

 

Submitted February 8, 2006 - Decided March 28, 2006

Before Judges Stern and Parker.

On appeal from a final decision of the

Department of Corrections.

Ernest Scott, appellant, pro se.

Zulima V. Farber, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Christopher C.

Josephson, Deputy Attorney General, on the

brief).

PER CURIAM

In this appeal in a prison disciplinary case:

APPELLANT ASSERTS A VIOLATION OF HIS FOURTEENTH AMENDMENT CONSTITUTIONAL RIGHT TO DUE PROCESS BY:

(A) AN UNTIMELY HEARING;

(B) FAILURE TO PROVIDE ADJUDICATION PAPERS and

(C) NO FACTUAL BASIS.

Appellant was found guilty of an asterisk infraction, N.J.A.C. 10A:4-4.21*.204 ("use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff"), after he and his cellmate were directed by Corrections Officers "to void a urine." According to the disciplinary report, Scott "appeared to act very suspicious and nervous," his eyes were bloodshot and his speech was slurred when the officers "suspected CDS use." A field test showed him positive for morphine, later confirmed by lab tests. Accordingly, appellant was charged with the *204 offense.

The adjudicatory form reflects that counsel substitute was requested and granted, that the inmate gave a statement asserting that he was not in his cell at the time the officers claimed he was observed there, and that the counsel substitute asserted that this was "a witch hunt" based on the "word of an informant" and that of the six urine tests only two tested "positive" so that the assertion was based on "unreliable information." Scott was found guilty and received a disciplinary sanction including fifteen days detention, permanent loss of contact visits, and administrative segregation.

Appellant claims that his due process rights were violated because he "did not receive his final hearing until December 3, 2004," whereas the disciplinary report was written on October 26, 2004. However, during the interim, his counsel substitute requested additional time in which to prepare, and sought an opportunity to confront adverse witnesses.

Appropriately framed, the issues before us are whether the due process guarantees of Avant v. Clifford, 67 N.J. 496 (1975), were satisfied, and if there is sufficient evidence detailed in the adjudicatory form to sustain the adjudications.

Appellant confronted one of the corrections officers, Senior Corrections Officer Togno, in a written exchange. The officer was also made available for oral questioning, and appellant submitted written statements of his own witnesses.

When appellant was ordered to void a urine, he tested positive for morphine. Counsel substitute indicated that the adjudicatory report was accurate. It therefore appears that the due process rights required by Avant v. Clifford were satisfied, and we affirm the adjudication. R. 2:11-3(e)(1)(D).

 
Affirmed.

(continued)

(continued)

3

A-4916-04T1

March 28, 2006