JOHN MELCHIONDO v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0343-08T30343-08T3

JOHN MELCHIONDO,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________________________

 

Argued June 3, 2009 - Decided

Before Judges Cuff and Fisher.

On appeal from a final decision of the Department of Corrections.

John J. Novak argued the cause for appellant (Law Offices of John J. Novak, P.C., attor-neys; Mr. Novak, on the brief).

Susan M. Scott, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Scott, on the brief).

PER CURIAM

In 1996, appellant began serving a lengthy prison sentence for aggravated manslaughter. He is currently an inmate at New Jersey State Prison in Trenton. In this appeal, we review a final decision of the Department of Corrections that found appellant violated prohibited act *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate, and prohibited act .701, unauthorized use of mail or telephone, N.J.A.C. 10A:4-4.1(a).

The record reveals that, on August 11, 2008, during a security check of the prison boiler room where appellant worked, a corrections officer answered a telephone ring and heard a male and a female voice on the line talking in a sexual manner. The officer then called appellant, who was the only other person in the boiler room; in that way, the officer was able to hear the call he was placing ring in the background of the open line; he also heard the male, whom he identified as appellant, tell the female that the other line was ringing and he needed to answer it.

The corrections officer reported this to a superior officer. When questioned, appellant admitted to being on the telephone and to placing telephone calls to persons outside the prison. Further investigation revealed that appellant had wired an unauthorized telephone into the phone jack of the authorized telephone. Appellant was placed in pre-hearing detention and charged with the prohibited acts cited above; notice of the charges was served on appellant on August 12, 2008.

A hearing was conducted on August 13, 2008. At that time, appellant pled guilty and provided a statement admitting making telephone calls to persons outside the prison. The hearing officer determined that appellant had violated both *.009 and .701. On the former violation, the hearing officer imposed: fifteen days detention, with credit for time served; 300 days administrative segregation; 300 days lost commutation time; a one-year loss of telephone privileges; a referral to the classification committee for reversion to maximum custody status; a permanent loss of contact visits; and a job change. On the latter violation, the hearing officer imposed: fifteen days detention, with credit for time served; sixty days loss of commutation time; and ninety days administrative segregation, to be served consecutive to the *.009 sanction.

Appellant filed an administrative appeal with the Department of Corrections. Appellant again admitted his guilt but sought leniency and claimed the sanctions were excessive. The hearing officer's determination was upheld; the Assistant Superintendent provided the following explanation:

Your actions compromise the safety and security of this institution. Tampering with a state phone/altering a phone for your personal use will not be tolerated or accepted at this institution. Your plea for leniency is denied. The sanction imposed was proportionate to the offense.

Appellant thereafter filed an appeal with this court, arguing:

I. MELCHIONDO WAS DENIED DUE PROCESS WHERE HE WAS NEVER CHARGED WITH VIOLATIONS OF *.306 (CONDUCT WHICH DISRUPTS OR INTERFERES WITH THE SECURITY OR ORDERLY RUNNING OF THE CORRECTIONAL FACILITY).

II. MELCHIONDO WAS DENIED DUE PROCESS WHERE HIS TESTIMONY WAS COMPELLED IN EXCHANGE FOR A PROMISE OF LENIENCY WHICH WAS LATER DENIED.

III. THE SANCTIONS IMPOSED BY THE DOC ARE EXCESSIVE, ARBITRARY AND CAPRICIOUS WHERE THE DOC ARTICULATED NO PARTICULARIZED BASIS FOR ITS DECISION.

We find Points II and III to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). We reject Point I for the following reasons.

In Point I, appellant argues he was denied due process of law because he was never charged with a violation of *.306, which prohibits conduct that disrupts or interferes with the security or orderly running of a correctional facility. In essence, in referring to the decision of the Assistant Superintendent on the administrative appeal, defendant claims he was sanctioned as if he had violated *.306 but that he did not receive notice that he would be so treated at the time sanctions were imposed. We reject appellant's argument that the Department was required to charge him with *.306 in order to reject his plea of leniency on grounds that his actions compromised the safety and security of the prison.

Indeed, appellant's argument incorrectly suggests that the rejection of his administrative appeal was inappropriate because the sanctions imposed required proof that he compromised safety and security. Appellant's conduct was not in question. As a result, the only questions that flowed from his admission of guilt were whether the sanctions were authorized by law -- they were -- and whether appellant persuasively argued for leniency. In the context of rejecting appellant's plea for leniency, the Assistant Superintendent explained the impact on what appellant would now have us find to be a relatively benign incident -- an unauthorized call to appellant's girlfriend. As the Assistant Superintendent correctly concluded, appellant's conduct was far more severe.

Appellant rigged a telephone so he could make calls to persons outside the prison. That ability to make unauthorized telephone calls presented far greater ramifications for the correctional facility than the particular telephone call partially overheard; the Department's concern for what may have already happened or could in the future occur with such an unauthorized device is what informed the sanctions imposed by the hearing officer and affirmed by the Assistant Superintendent. Recognizing the potentially serious security risks generated by appellant's actions, we reject his argument that the sanctions imposed were arbitrary, capricious or unreasonable. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Affirmed.

 

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A-0343-08T3

June 30, 2009