ISIAH JONES v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0767-07T30767-07T3

ISIAH JONES,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________________________

 

Submitted January 7, 2009 - Decided

Before Judges Lihotz and Messano.

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

Isiah Jones, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Isiah Jones appeals from the final decision of the Department of Corrections (D.O.C.) adjudicating him guilty of disciplinary offense *.203, possession or introduction of any prohibited substance, N.J.A.C. 10A:4-4.1. He contends his due process rights were violated because he was not timely served with the charge, he was denied the right to confrontation, the reports filed by D.O.C. were "illegible," and more than one hearing officer participated in the proceedings. We reject these contentions and affirm.

On July 28, 2007, during a search of Jones' locker at approximately 6:00 p.m., corrections officer Wynter found a green leafy substance he believed to be marijuana. Jones was placed in pre-hearing administrative detention and issued a disciplinary charge at 11:00 a.m. on July 30. The hearing was postponed on July 31 because Jones was in the infirmary. Several other subsequent dates were postponed for a variety of reasons, including the need to field test the substance; the receipt of additional reports; and the need to permit confrontation of Wynter as requested by the inmate and his counsel substitute. On August 29, 2007, hearing officer McGovern heard the charge, determined Jones was guilty, and imposed sanctions. Jones' administrative appeal to the administrator was denied on September 27, and this appeal ensued.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Jones does not challenge the sufficiency of the evidence adduced, but rather contends he was denied due process. However, our independent review of the record satisfies us that he was accorded all of the procedural due process requirements articulated by the Supreme Court in McDonald v. Pinchak, 139 N.J. 188 (1995), and Jacobs v. Stephens, 139 N.J. 212 (1995).

Although N.J.A.C. 10A:4-9.8(c) requires that an inmate placed in pre-hearing detention receive his hearing within seventy-two hours, the failure to adhere to this strict timeframe does not mandate dismissal of the charges. N.J.A.C. 10A:4-9.9. Rather, the hearing officer may consider whether dismissal is warranted based upon the reason for and length of the delay, and any prejudice the inmate may suffer. Although Jones never raised the issue at the time of his hearing, there were ample reasons for the various postponements of the final adjudicatory hearing, he makes no specific claim of prejudice, and we find no abuse by D.O.C.

Jones' claims that he was denied the opportunity to 1) speak at the hearing; 2) see the evidence; and 3) confront his "accuser," are all belied by the record itself. The adjudicatory report indicates that both he and his counsel substitute made statements to the hearing officer, various reports were admitted into evidence, statements were taken from two witnesses whose names he supplied to D.O.C., and he was afforded confrontation of Wynter. As for the legibility of the report, Jones' counsel substitute acknowledged the accuracy of its contents by signing the form. Moreover, having seen the report ourselves, it is not illegible.

Jones' final claim, that the procedures employed violated our holding in Ratti v. Dep't. of Corr., 391 N.J. Super. 45 (App. Div. 2007) because more than one hearing officer was involved, is without merit. While other hearing officers were involved in granting the various adjournments, the entire evidentiary phase of the hearing took place before only officer McGovern. There was no due process violation in this regard.

Affirmed.

 

Jones filed his administrative appeal on August 28, one day prior to the hearing officer's decision. This anomaly is unexplained in the record.

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4

A-0767-07T3

January 27, 2009