EUGENE TATE v. NEW JERSEY DEPARTMENT OF CORRECTIONS

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1551-08T11551-08T1

EUGENE TATE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________________________________


Submitted May 25, 2010 - Decided

Before Judges Skillman and Simonelli.

On appeal from the New Jersey Department of Corrections.

Eugene Tate, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Eugene Tate, an inmate at Northern State Prison, was found, based on the evidence presented at a disciplinary hearing, to have committed prohibited act *.253, engaging in or encouraging a group demonstration, and prohibited act *.306, conduct which disrupts or interferes with the security or orderly running of the institution. Appellant filed a notice of appeal, which challenged the finding of the *.253 disciplinary infraction, but he did not appeal from the finding of the *.306 disciplinary infraction, which was not mentioned in either his notice of appeal or case information statement.

Respondent Department of Corrections filed a motion to remand the matter to afford the Department an opportunity to reconsider its finding that appellant had committed prohibited act *.253. We granted this motion, and the Department determined on the remand that the charge of a violation of *.253 had not been proven.

We conclude that the Department's reversal of its finding that appellant had committed disciplinary infraction *.253 and dismissal of that charge moots this appeal. See Cingue v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243-44 (App. Div. 1993). We reject appellant's argument that his appeal should be deemed amended to include the finding of the *.306 infraction, based on his February 13, 2009, letter to the clerk of this court, with a copy to the Attorney General. Appellant not only failed to file an amended notice of appeal to include the *.306 charge, but also failed to object to the respondent's limitation of its motion for remand to the *.253 charge. As a result, the proceeding on the remand was limited to the *.253 charge.

We would add that there is no inherent inconsistency between respondent's finding on the remand that the *.253 charge was not sustained and its finding in the original hearing that the *.306 charge had been sustained, because an inmate can individually disrupt the orderly operation of the prison by failing to comply with an order to keep moving without participating in a group demonstration. We do not foreclose appellant from seeking a reduction in the sanction for the *.306 infraction based on the finding on remand that the *.253 charge was not sustained.

Affirmed.


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A-1551-08T1

June 10, 2010