RASHEED POWELL v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6079-04T56079-04T5

RASHEED POWELL,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

__________________________________

 

Submitted March 27, 2006 - Decided April 20, 2006

Before Judges Cuff and Lintner.

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

Rasheed Powell, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, an inmate currently confined to Northern State Prison in Newark, appeals from a determination of the Department of Corrections (Department) finding him guilty of committing prohibited act 152 (destroying, altering or damaging government property, or the property of another person), in violation of N.J.A.C. 10A:4-4.1(a). Petitioner was sanctioned fifteen days of detention with credit for time served, ninety days of administrative segregation, sixty days loss of commutation time and restitution of $130 to cover replacement of the bed in his cell. We affirm.

The following are the facts. On May 7, 2005, at approximately 10:50 p.m., Sergeant Morgade and Lieutenant Pretell in separate reports indicated that they had called in a code because petitioner was trapped in his cell and the top bunk had fallen on top of him. Medical personnel from the infirmary were called and petitioner was assisted onto a stretcher and taken to the nurse's station. At approximately 11:30 p.m., petitioner was taken to an outside hospital. Petitioner's cellmate, who was found sitting on the floor in the cell, was taken to the institution's hospital for evaluation. Petitioner reported he was asleep and he did not remember anything until the next morning.

An investigation followed. Photographs were taken of the top bunk. Investigator Pena determined that the manner in which the bed had fallen gave him the impression that the inmate may have caused the bed to fall. An inspection was thereafter conducted by Robert Anello, a maintenance department employee, who found footprints on the underside of the top bunk and a broken weld. Anello determined that the bunk had been willfully damaged, causing it to collapse. Sergeant Fleming interviewed Williams, who denied doing anything wrong. After reviewing Anello's report, Fleming concluded that both inmates purposefully damaged the bed in an attempt to perpetrate a fraud, claiming they were injured

At the hearing, Powell again claimed that he was asleep and did not remember anything until the next day. Counsel substitute stated that there was a possibility that someone else tampered with the bedpost, causing it to fall on Powell. Powell was offered, but denied the opportunity to call any witnesses or cross-examine any of the witnesses.

Hearing Officers Nolley and Maniscalco determined, based upon the evidence, that sometime during the evening of May 7, 2005, petitioner damaged the bed, creating the circumstances that would cause the bed to fall on him. On Administrative Appeal, Assistant Superintendent Eric Stokes found the Hearing Officers' decision "was based upon substantial evidence" and "[t]he sanction imposed was proportionate to the offense in view of the inmate's disciplinary history."

On appeal, Petitioner contends that he was denied procedural due process because he was not provided a timely hearing or access to any maintenance records as to the condition of the cell after the previous inmate occupied it. The hearing was delayed in order to fully investigate the charges.

A hearing is mandated to be conducted within seven days of the violation, unless it is prevented by reasonable postponements. N.J.A.C. 10A:4-9.8(b). Moreover, failure to hold a hearing within the prescribed time limits does not necessarily lead to dismissal. Where there are delays, the decision to dismiss is within the discretion of the hearing officer, depending on the length and reasons for the delay and whether the inmate is prejudiced in preparing his defenses. N.J.A.C. 10A:4-9.9(a).

 
The hearing, which was completed on May 24, 2005, was reasonably delayed due to the need to further investigate the incident. Moreover, the delay did not prejudice petitioner's defense. The decision of the Department is supported by substantial credible evidence in the administrative record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Petitioner was accorded the appropriate safeguards and protections during the procedure in accordance with Avant v. Clifford, 67 N.J. 496, 522-32 (1975). We are satisfied that petitioner's contentions to the contrary are without merit. R. 2:11-3(e)(1)(D), (E).

Affirmed.

(continued)

(continued)

4

A-6079-04T5

April 20, 2006