MARIANNE SUTLEY 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NOT FOR PUBLICATION WITHOUT THE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-0

MARIANNE SUTLEY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

November 6, 2013

 

Submitted October 1, 2013 Decided

 

Before Judges Alvarez and Carroll.

 

On appeal from the New Jersey Department of Corrections.

 

Marianne Sutley, appellant pro se.

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

 

PER CURIAM

Marianne Sutley, who is no longer in custody,1 in June 2012, while housed at Edna Mahan Correctional Facility, filed an appeal of her adjudication of guilt and the imposition of sanctions on prohibited act *.101, escape, N.J.A.C. 10A:4-4.1(a). Those sanctions, as modified by Department of Corrections Administrator Hauck on Sutley's initial appeal, included fifteen days detention with credit for time served, 270 days of administrative segregation, 365 days loss of commutation time, fourteen hours extra duty, and thirty days loss of recreation privileges. We affirm.

At the time of the incident, Sutley was a resident at the Garrett Halfway House in Camden. She was granted a furlough on April 1, 2012, and was required to return by 10:00 p.m. At some unspecified time that day, Sutley's daughter contacted Garrett House and informed staff that Sutley had taken her car without permission and that she was no longer welcome at the furlough site. At 3:05 p.m., staff spoke with Sutley and advised that she was to return to the facility by 4:30 p.m. because of this development.

Miguel Gomez, a program assistant at Garrett House, received numerous calls from Sutley while working the 12:00 a.m. to 8:00 a.m. shift the following day, April 2. Although Gomez repeatedly informed Sutley that she had to return to the facility as soon as possible, and Sutley remained in contact with staff at the Garrett House, she did not return until the morning of April 2, 2012. In the interim, an order for her arrest was issued by the Garden State Correctional Facility.

Sutley later insisted that her failure to return at the scheduled time was merely the result of a miscommunication between herself and staff, and her inability to obtain transportation until the following morning. As a result of this incident, Sutley was charged with escape and .257, violating a condition of a community release program. N.J.A.C. 10A:4-4.1(a). She is not appealing the latter adjudication.

The disciplinary hearing on the charges commenced on April 4, 2012, before Hearing Officer Russell. Sutley was assigned counsel substitute, and the hearing concluded on April 16, 2012.

In her defense, Sutley raised the same argument that she now makes on appeal, namely, that there was merely a misunderstanding between herself and staff, and that she had no access to a vehicle to return to Garrett House. She explained that she maintained constant contact with staff during the night once she realized that she had a transportation problem. Sutley called no witnesses, nor did she cross-examine any adverse witnesses.

Hearing Officer Russell found Sutley guilty of the *.101 charge because none of her statements contradicted the staff report and therefore amounted to an admission of guilt. In his opinion, the fact that she arrived at her furlough site at 9:30 p.m. on April 1, 2012, and only called at 10:00 p.m. established her lack of intent to return to Garrett House.

On the same date, Sutley filed an administrative appeal of both charges. On April 17, 2012, Administrator Hauck upheld the hearing officer's findings.

On this appeal, Sutley raises the following points of error:

POINT ONE

THE DISCIPLINARY PROCEEDING WAS ARBITRARY, CAPRICIOUS AND AN ABUSE OF DISCRETION BECAUSE THERE WAS NOT SUBSTANTIAL EVIDENCE TO SUPPORT THE FINDING OF GUILTY.

 

POINT TWO

THE PRISON DISCIPLINARY PROCEEDING EXCEEDED PERMISSIBLE LIMITS OF N.J.A.C. 10A:4-5.1(a) BECAUSE OF EXCESSIVE SANCTIONS, AND SHOULD BE REDUCED OR SET ASIDE BY THIS COURT.

 

Prisoners are entitled to procedural safeguards as delineated in Avant v. Clifford, 67 N.J. 496, 525-33 (1975): (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal, which may consist of personnel from the central office staff at the Department; (3) where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute; (4) a limited right to call witnesses and present documentary evidence in defense to the charges; (5) a limited right to confront and cross-examine adverse witnesses; and (6) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed.

The Avant requirements have been met in this case. Sutley received not only written notice of the charges, but was assigned counsel substitute. The hearing officer, an impartial tribunal, offered her the opportunity to call witnesses, present documentary evidence, confront and cross-examine adverse witnesses. She reviewed a written statement of findings and reasons for the sanctions that were imposed.

That these procedural safeguards were met is established by the adjudication sheet, which notes that Sutley and her counsel substitute declined to call witnesses after being extended the opportunity to do so, and declined to confront or cross-examine any witnesses. In our view, therefore, all the procedural safeguards have been met. The requirements of Avant were satisfied.

Furthermore, Sutley's explanation that the miscommunication with staff at the Garrett House was simply a misunderstanding is not convincing. To the contrary, her own statement, as well as the staff reports, establishes substantial evidence that she neither intended to return, nor attempted to return, at the required hour. Sutley's phone contacts were not an adequate substitute for her actual physical presence. Thus we consider the agency's decision to be supported by credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

The adjudication was not arbitrary, capricious, or unreasonable. See ibid. Therefore we do not disturb it. See In re Taylor, 158 N.J. 644, 657 (1999); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1996), aff d, 107 N.J. 355 (1987). Sutley's first point lacks merit.

With regard to Sutley's second point, that the sanctions were excessive, that argument also lacks merit. N.J.A.C. 10A:4-5.1(a) authorizes permissible sanctions for asterisk offenses. Sutley's disposition falls within the range for the offense.

Sutley contends that the loss of 425 days commutation credit is in excess of the one-year limit for loss of commutation credits under N.J.A.C. 10A:4-5.1(a). But, that argument overlooks the fact that Sutley was subjected to loss of commutation credit not only for the *.101 offense, but for the .257 charge as well. See N.J.A.C. 10A:4-5.1(b)l. The 425 days loss of commutation credit was imposed in combination and was therefore also permissible.

Affirmed.

1 Because we presume disciplinary actions are on an individual's permanent record with the Department of Corrections, we do not consider the appeal to be moot although our disposition has no effect on Sutley's present status.