ANTHONY BOONE 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NOT FOR PUBLICATION WITHOUT THE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-6067-10T3

ANTHONY BOONE,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

__________________________________

SubmittedJuly 9, 2013 Decided July29, 2013

Before Judges Ashrafi and St. John.

On appeal from the New Jersey Department of Corrections.

Anthony Boone, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Anthony Boone appeals a June 29, 2011, decision of the Department of Corrections (DOC) finding him guilty of disciplinary infraction *.701, unauthorized use of mail or telephone, in violation of N.J.A.C. 10A:4-4.1. We affirm.

We briefly summarize the relevant procedural history and the facts based on the record before us.

Boone is currently incarcerated at New Jersey State Prison (NJSP) serving a life sentence for murder and other charges. From September 25, 2007, until June 20, 2011, he was administratively transferred to East Jersey State Prison (EJSP). Beginning in 2006, the DOC's Special Investigations Division (SID) investigated a conspiracy to smuggle narcotics and cellular telephones into NJSP. The inquiry determined that Boone had violated telephone procedures at NJSP.

The DOC and NJSP permit inmates to make phone calls pursuant to the Individual Personal Identification Number (IPIN) system. In order to be given telephone privileges, an inmate must complete an IPIN form and list up to ten telephone numbers of family, friends, and acquaintances. Upon approval of the list, the inmate is provided an IPIN and the telephone list is activated. The prison policy clearly states "[o]nce an IPIN number [has] been issued to you, it cannot be changed. Do not under any circumstances share this information with anyone else." SID investigation disclosed that NJSP Inmate Anthony Kidd made 433 phone calls using Boone's IPIN.

On June 21, 2011, Boone was served with notice of the charge. Boone pled not guilty. A hearing was commenced on June 22, 2011, and postponed until June 27, 2011, because Boone wanted to confront the SID investigator. At the hearing in response to the charge, Boone stated "So what if I let him use my IPIN." Boone never denied giving Kidd his IPIN. He challenged the hearing officer to "produce the rule I can't let someone else use my IPIN." At no point did Boone explain how Kidd had gotten his IPIN without Boone disclosing it to him. Boone's request for a further postponement was denied because the hearing officer determined Boone "admits to wrong doing." Boone had the assistance of counsel substitute but he declined to call any witnesses.

The hearing officer considered evidence of the investigator's statement, the record of the 433 phone calls, Boone's typed statement, the confidential SID investigative report and the telephone policy at the prison. The hearing officer found Boone guilty of .701 and sentenced him to fifteen days detention, ninety days administrative segregation, sixty days loss of commutation time, and 365 days loss of phone privileges. The reason the hearing officer gave for the discipline was to promote and maintain a safe drug-free environment because the phone calls Kidd made using Boone's IPIN were related to illegal activities involving money and drugs.

On June 29, 2011, Boone filed an administrative appeal claiming a violation of standards, misinterpretation of the facts, and violation of his due process rights because the hearing officer prohibited him from cross-examining the investigator. Boone also argued that he could not have been involved in any wrongdoing at NJSP given that he had been transferred to EJSP on September 25, 2007. The Assistant Superintendent upheld the decision of the hearing officer because Boone failed to state how a standard was violated, any misinterpretation of the facts, or that due process requirements were not met. It is from that decision that Boone appeals.

Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable, or 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) (citations omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Nonetheless, prisoners are entitled to certain limited due process protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff, a limited right to call witnesses, the assistance of counsel substitute, and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995).

N.J.A.C. 10A:4-9.14(b) provides that a disciplinary hearing officer may refuse confrontation and cross-examination of witnesses when the cross-examination would be unduly hazardous to the correctional facility, irrelevant or repetitive. The hearing officer determined that the examination of the investigator "would produce repetitive testimony" since Boone had admitted the "wrong doing." We determine that the hearing officer's refusal to allow the confrontation of the investigator was supported by Boone's admission of wrong doing.

Boone also argues that the DOC provided no evidence that he had violated the prion's telephone policy. We disagree. The confidential SID report contained evidence of 433 phone calls made by Kidd using Boone's IPIN, Boone stated "[s]o what if I let him use my IPIN[,]" and never denied giving Kidd his IPIN, but instead claimed that there was no policy prohibiting him from doing so. "A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't. of Corr., 414 N.J. Super. 186, 192, (App. Div. 2010) (quoting In re Pub. Serv. Gas & Elec. Co., 35 N.J. 358, 376 (1961)). Here there was more than adequate evidence to support a conviction. Further, we will not substitute our own judgment for the agency's even though we might have reached a different conclusion. In re Stallworth, supra, 208 N.J. at 194.

Boone also claims due process violations inasmuch as he was not permitted handwriting analysis to show that the IPIN form purported to be completed by him was actually completed in someone else's handwriting, and because he was not permitted to confront and cross-examine the investigating officer. However, Boone stated that he was entitled to share his IPIN and he had challenged the hearing officer to produce a policy to the contrary. Thus, handwriting analysis and confronting of the investigating officer would have been redundant, given Boone's statement "[s]o what if I let him use my IPIN."

Boone also claims that due process was violated because he was not given notice of the charge until June 21, 2011, whereas other inmates had received notices of their charges pursuant to the same investigation as early as June 15, 2011. Pursuant to N.J.A.C. 10A:4-9.2, an inmate should be given notice of a charge within forty-eight hours of the violation, unless there are exceptional circumstances. Here, there were exceptional circumstances inasmuch as the SID investigation had just been completed in June 2011, Boone was transferred from EJSP on June 20, 2011, and was given notice on June 21, 2011.

We conclude that Boone was afforded his due process rights. He was given written notice of the charge at least twenty-four hours prior to the hearing, he was given counsel substitute, he was offered the opportunity to call witnesses, and the hearing officer provided a written statement of the evidence relied upon and the reasons for the discipline.

Affirmed.