SAMMIE L. CHISOLM 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NOT FOR PUBLICATION WITHOUT THE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

SAMMIE L. CHISOLM,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________

June 15, 2015

Submitted June 2, 2015 Decided

Before Judges Yannotti and Hoffman.

On appeal from a Decision of the New Jersey Department of Corrections.

Sammie L. Chisholm, appellant pro se.

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

PER CURIAM

Sammie L. Chisolm ("Chisolm") appeals from a final determination of the New Jersey Department of Corrections ("Department"), finding him guilty and imposing sanctions for committing prohibited act *.803/*.704, attempting to perpetrate a fraud, contrary to N.J.A.C. 10A:4-4.1(a). We affirm.

Chisolm is an inmate in the State's correctional system, serving a forty-year sentence, with a thirty-year period of parole ineligibility, as a result of his conviction for murder and certain weapons offenses. In April 2012, the Special Investigations Division ("SID") at New Jersey State Prison ("NJSP") in Trenton began an investigation of a conspiracy on the part of inmates to obtain contraband, such as drugs and cell phones, through NJSP staff members.

During the investigation, the SID discovered that a United States Postal Service ("USPS") money order in the amount of $550 was deposited into Chisolm's inmate account in July 2012. According to the SID's confidential report, Chisolm had conspired with other inmates and civilians to receive monies for the purchase of contraband, including cigarettes and narcotics. The SID's report indicated that payments were made to Chisolm for the purchase of certain contraband and that money was sent from a fictitious name and address. The report was kept confidential due to an ongoing criminal investigation and to deter the possibility of retaliation.

Chisolm was charged with *.803/*.207, attempting to possess money or currency in excess of $50. On April 10, 2014, the charges were served upon Chisolm. The charges were found to have merit, and referred to a disciplinary hearing officer ("DHO") for further action. The DHO conducted a hearing on the charge on April 17, 2014, and modified the charge to *.803/*.704, attempting to perpetrate a fraud. Chisolm pled not guilty. His request for the assistance of counsel substitute was granted.

At the hearing, Chisolm claimed that he received the monies from another inmate's family because Chisolm had "kept him fed." Chisolm denied that the money was for drugs. Chisolm declined the offer to confront or cross-examine adverse witnesses, both during the investigation and at the hearing. His counsel substitute requested leniency.

The DHO found Chisolm guilty of the modified charge. The DHO based her decision on the disciplinary report, which indicated that Chisolm had conspired with others to obtain monies improperly. The DHO noted that Chisolm had admitted he knew the monies had not been obtained from the person identified as the sender on the money order. He also admitted that the payments were for doing "favors" for at least one other inmate. The DHO imposed the following sanctions: ten days detention, with credit for time served; ninety days of administrative segregation; the loss of sixty days of commutation time; and confiscation of the $550.

Chisolm filed an administrative appeal, challenging the finding of guilt and the confiscation of the $550. On May 1, 2014, Antonio Campos ("Campos"), Associate Administrator at NJSP, upheld the DHOr's decision. Campos found that the rules governing inmate discipline had been complied with, the decision was supported by substantial evidence, and the sanctions imposed were "appropriate." This appeal followed.

Chisolm argues that the charge should have been dismissed because a disciplinary report had not been served within forty-eight hours after the violation occurred, as required by N.J.A.C. 10A:4-9.2. He also argues that there was insufficient evidence to support the charge. Having thoroughly reviewed the record, we are convinced that these arguments are entirely without merit.

The standard of review that applies in this matter is well-established. "In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). When reviewing a determination of the Department in a prisoner disciplinary matter, we consider whether there is substantial evidence that the inmate has committed the prohibited act and whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); see also Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995).

We are convinced that there is substantial evidence in the record to support the Department's determination that Chisolm committed prohibited act *.803/*.704, attempting to perpetrate a fraud. Here, Chisolm admitted that the monies were deposited in his inmate account. He notes that monies were obtained through a USPS money order and claims that this was the only "acceptable means" to obtain funds in 2012.

However, according to the DHO's report, Chisolm admitted that the funds were not sent from the person identified as the sender on the money order, and the monies came from other inmates as payment for "favors." The confidential investigation revealed that Chisolm had been engaged in a conspiracy involving the trafficking of contraband within the prison. The investigation indicated that payments were made to Chisolm for the purchase of contraband and that money was sent from a fictitious name and address. We are therefore convinced that there was sufficient evidence to support the DHO's finding of guilt.

Chisolm argues, however, that the charges should have been dismissed because the disciplinary report was not served within the time required by N.J.A.C. 10A:4-9.2. The rule provides that

[t]he disciplinary report shall be served upon the inmate within [forty-eight] hours after the violation unless there are exceptional circumstances. The report shall be delivered by the reporting staff member or the investigating custody staff member. The report shall be signed by the person delivering it and the date and time of delivery shall be noted. The inmate shall have [twenty-four] hours to prepare his or her defense.

[Ibid.]

Here, the $550 was deposited in Chisolm's account in July 2012, and the disciplinary report served on April 10, 2014. However, the charge arose out of an investigation that began in 2012. The SID informed the DHO that the charge was issued at a time when it would not have an impact upon or impede the ongoing investigation. Thus, the Department established exceptional circumstances for the delay in serving the disciplinary report.

Chisolm further argues that the seizure of the $550 was not authorized by the administrative code. We disagree. N.J.A.C. 10A:4-5.1(a) authorizes the confiscation of illegal funds, as a disciplinary sanction.

Affirmed.