DANA HARRIS v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0093-09T20093-09T2

DANA HARRIS,

Plaintiff-Appellant,

vs.

DEPARTMENT OF CORRECTIONS,

Defendant-Respondent.

__________________________________

 

Submitted: March 11, 2010 - Decided:

On Motion for Summary Disposition.

Before Judges Cuff and C.L. Miniman.

On appeal from the Department of Corrections.

Dana Harris, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Kevin R. Jespersen, Assistant Attorney General, on the brief).

PER CURIAM

In this prison disciplinary appeal, respondent Department of Corrections (DOC) moves for summary disposition. We grant the motion and affirm.

Appellant Dana Harris is an inmate at New Jersey State Prison serving a seven-year sentence for robbery and related weapons charges. This appeal relates to a July 3, 2009 incident; at the time Harris was incarcerated at Bayside State Prison.

After finding a two-inch hole in the wall by the pillow area of Harris's bunk bed containing a wire with a "razor handle with a razor melted into the end" and another smaller but empty hole in the wall, Senior Corrections Officer Sutherland filed three disciplinary reports charging Harris with the following prohibited acts: (1) .152--destroying, altering or damaging government property; (2) *.202--possession or introduction of a weapon; and (3) *.306--conduct which disrupts or interferes with the security or orderly running of the correctional facility. N.J.A.C. 10A:4-4.1(a). Harris pled not guilty and "counsel substitute" was assigned.

The record contains handwritten notes presumably made by Hearing Officer Maguire indicating that the other inmates charged with the same offenses either denied knowledge of the holes or claimed the holes were there all along. Harris claimed: (1) the charges were "a direct result" of his recently filed complaint about the conditions at the facility; (2) he had "immediately" told an officer about the holes when he was placed in the cell; (3) he was never given a cell inspection form to sign; and (4) he was not aware of the weapon found in the hole. By handwritten interoffice memorandum dated July 9, 2009, Corrections Officer Neiswender claimed that Harris never informed him of the holes in the wall. Another corrections officer named in the report was on leave and not available to respond. Counsel substitute offered no statement and Harris declined the opportunity to cross-examine the witnesses. The record also contains a cell inspection report dated November 14, 2008, purportedly signed by Harris, indicating no damage to the cell walls, and another cell inspection report signed by Harris's cellmate dated March 26, 2009, indicating no damage to the cell walls.

The hearing officer found Harris guilty of the three charges. He imposed the following discipline: thirty days loss of commutation time and ninety days administrative segregation for the .152 infraction; 210 days loss of commutation time, fifteen days detention and 210 days administrative segregation for the *.202 infraction; and 210 days loss of commutation time, fifteen days detention and 210 days administrative segregation for the *.306 infraction. The Associate Administrator upheld the hearing officer's decision finding Harris guilty of the three charges based upon "substantial evidence." He found the sanctions "proportionate to the offense." Harris filed a timely notice of appeal.

The party moving for summary disposition must "demonstrate that the issues on appeal do not require further briefs or a full record." R. 2:8-3(b). This dispositional alternative is intended to "provide a pre-transcript, pre-argument opportunity for the screening out of appeals whose ultimate outcome is so clear as not to require for decision full perfection and hearing." Pressler, Current N.J. Court Rules, comment 2 on R. 2:8-3 (2010). See also GE Capital Mortgage Servs., Inc. v. N.J. Title Ins. Co., 333 N.J. Super. 1, 5 (App. Div. 2000). Summary disposition is appropriate where the appeal is "patently frivolous and the questions involved patently insubstantial" or where the trial court or administrative agency was "patently in error." Pressler, supra, comment 2 on R. 2:8-3.

DOC argues that this matter is ripe for summary disposition because the "substantial evidence" on this "fully developed administrative record" shows that there were two holes in the wall of Harris's cell, a weapon was found in the hole that was "directly level" with Harris's pillow on the top bunk, and those cells had to be condemned until the holes could be fixed. We agree.

The finding that Harris constructively possessed the weapon is appropriate because the hole containing the weapon was "accessible only from Harris's top bunk." Furthermore, the record creates a "reasonable inference that Harris knew about the razor and intended to exercise physical control over it." Finally, the hearing comported with all procedural due process requirements. See McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Avant v. Clifford, 67 N.J. 496, 524-29 (1975).

 
Moreover, the discipline imposed comports with the applicable regulations. N.J.A.C. 10A:4-5.1(a), provides that a finding of guilty for any offense set forth in N.J.A.C. 10A:4-4.1(a) that is preceded by an asterisk "shall render the offender subject to one or more" sanctions including, among others, up to fifteen days detention, administrative segregation for not more than a year, and loss of commutation time up to 365 calendar days. A finding of guilty for all other offenses shall subject the offense to such sanctions as up to fifteen days detention, administrative segregation for not more than ninety days and up to sixty days loss of commutation time. N.J.A.C. 10A:4-5.1(b).

Affirmed.

(continued)

(continued)

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A-0093-09T2

March 22, 2010