ALBERT ROBERTS v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1737-08T11737-08T1

ALBERT ROBERTS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________________

 

Submitted February 10, 2010 - Decided

Before Judges J. N. Harris and Newman.

On Appeal from a Final Decision of the

New Jersey Department of Corrections.

Albert Roberts, appellant pro se.

Paula T. Dow, Acting Attorney General,

attorney (Melissa H. Raksa, Assistant

Attorney General, of counsel; Ellen M.

Hale, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Albert Roberts appeals from a final agency decision upholding a finding of guilty on disciplinary charge *502, interfering with the taking of a count. Pursuant to N.J.A.C. 10A:4-4.1, Roberts was sanctioned with ten days of detention with credit for time served, sixty days loss of commutation time which was suspended for sixty days, and referral for custody status review. We were advised that he did not commit any other infraction during the sixty days and, therefore, did not lose commutation time.

The relevant facts are as follows. Roberts is serving a thirty-year sentence with a mandatory minimum of seventeen years for robbery and weapons possession. At approximately 12:50 p.m. on October 29, 2008, Senior Corrections Officer (SCO) C. Anderson conducted a head count for the I-Bldg. movement at 1:00 p.m. In the course of the count, an inmate sat in a chair in the corner of the room with his coat over his head covering all of his body except for his legs. SCO Anderson ordered the inmate to remove the coat and discovered it was Roberts. A week earlier, SCO Anderson had warned Roberts not to cover his body. Roberts was then charged with interfering with the count.

Hearing Officer Z. Maguire conducted the hearing on October 30, 2008. Roberts was represented by counsel substitute and pled not guilty to the charges. Roberts' statement at the hearing was to the effect that he was seated in the day room with twenty other inmates. Roberts denied that the coat was over his head but insisted that it was on the back of his chair when his name was called. He could not see how he could "hide under a coat in plain view of a day room."

His counsel substitute made a statement that this was not a formal count and that Roberts did not interfere with anything. He asserted that, if a coat was over Roberts's head, all SCO Anderson had to do was tell Roberts to remove it.

While other witnesses were present in the day room, Roberts never requested any witnesses. The Hearing Officer said that an officer can conduct a count at anytime he would deem it necessary to do so.

On appeal, the inmate raises the following point:

POINT I: THE HEARING OFFICER FAILED TO RELY ON FACTS CONTAINED WITHIN THE CHARGE, AS WELL AS THE STANDARDS SET FORTH BY THE INSTITUTION WHICH DID DEPRIVE HIM OF A FAIR AND IMPARTIAL HEARING 10A:4-1(a) 1, AND HIS GUARANTEED RIGHT UNDER THE U.S. CONST., XIV AMEND. TO DUE PROCESS OF LAW.

Roberts argues that the South Woods State Prison Inmate Manual states that formal inmate counts are taken only at scheduled intervals, none of which is at 12:50 p.m. The nearest scheduled count that is listed in the Manual is 1:00 p.m. Accordingly, since the 12:50 p.m. count was not listed in the Manual, it was allegedly unsanctioned, and Roberts could not have committed a prohibited act.

There is nothing that requires a *502 charge to be linked to a listed-in-the-Manual count time. While a formal count is taken at specific times, there is nothing that prohibits a corrections officer from taking a count when deemed necessary or appropriate. Here, the inmates were preparing to move to another area and SCO Anderson took an informal count before the move took place. It would not be imprudent to take a count before inmates are moved from one location to another. There is nothing raised by Roberts to indicate that he was not afforded the protections provided in a disciplinary proceeding. See Avant v. Clifford, 67 N.J. 496, 525-30 (1975).

We are satisfied that the decision by the administrative agency is supported by sufficient credible evidence in the record as a whole. R. 2:11-3(e)(1)(D).

Affirmed.

 

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A-1737-08T1

March 3, 2010