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NOT FOR PUBLICATION WITHOUT THE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-5509-04T25509-04T2

TYRONE BARNES,

Plaintiff-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Defendant-Respondent.

_______________________________________

 

Submitted December 21, 2005 - Decided January 13, 2006

Before Judges Stern and Kimmelman.

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

Appellant Tyrone Barnes filed a pro se brief.

Peter C. Harvey, Attorney General, attorney for respondent, Department of Law and Public Safety (Patrick DeAlmeida, Assistant Attorney General, of Counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Tyrone Barnes, while an inmate at the Northern State Prison serving a 30 year term for burglary, robbery, and other charges, was found in violation of the unlawful possession and misuse of an electronic device, a cellular telephone, contrary to the provisions of N.J.A.C. 10A:4-4.1, *.009. He was sanctioned to fifteen days detention, 365 days loss of commutation time, and 365 days of administrative segregation. The Department of Corrections (D.O.C.) upheld the decision of the hearing officer. Barnes appeals contending as follows in his brief:

POINT I: THE HEARING OFFICER SHOULD HAVE RECUSED HIMSELF FROM THIS MATTER BECAUSE OF BIAS AND PRIOR NEGATIVE CONTACT WITH APPELLANT, WHEREAS APPELLANT WAS AN INMATE PARALEGAL AND REPRESENTED NUMEROUS INMATES AS "COUNSEL SUBSTITUTE" IN SIMILAR COURTLINE PROCEEDINGS

POINT II: THE HEARING OFFICER REPEATEDLY VIOLATED THE 48-HOUR RULE AND DENIED APPELLANT DUE PROCESS TO A TIMELY HEARING

POINT III: THE DECISION TO SHIELD THE CONFIDENTIAL INFORMATION FROM THE RECORD DENIED APPELLANT DUE PROCESS

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

We find these contentions to be without merit and affirm.

Acting upon information they had received, on May 15, 2005, at approximately 10:30 p.m., two officers entered the trailer where Barnes was housed. Barnes was overheard speaking from inside of a closed water heater closet. Upon opening the door to the closet, Barnes exited the area. No one else was in the closet. An immediate search of the closet area revealed a cellular telephone hidden behind a boiler located in the rear of the closet. On May 16, 2005, Barnes was charged with committing a disciplinary infraction.

The initial hearing was held on May 17, 2005, but was postponed because Barnes requested confrontation of an adverse witness. A second and third hearing was postponed because of scheduling problems with the adverse witness. A fourth hearing scheduled for May 25, 2005, was postponed because Barnes requested a polygraph test. No decision on the test had been reached on May 26, and on May 27 a final hearing was held. Barnes was assigned a counsel substitute. Barnes pled not guilty, evidence was received, and then Barnes requested a different hearing officer because he had recently acted as a counsel substitute before that hearing officer. The request was denied as was the request for a polygraph examination.

The hearing officer then reviewed the evidence and found Barnes guilty of the prohibited act and recommended the sanctions above set forth.

We are satisfied that the cause of the delays in the hearing date were due to the actions of Barnes and that Barnes failed to present any reasons to justify the recusal of the hearing officer because of his alleged bias. Barnes was accorded the full spectrum of his rights as set forth in Avant v. Clifford, 67 N.J. 496, 522 (1975).

 
The decision of the D.O.C. was not arbitrary, capricious, or unsupported by credible evidence and must be upheld. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).

Affirmed.

(continued)

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4

A-5509-04T2

 

January 13, 2006