LESTER DENMON 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NOT FOR PUBLICATION WITHOUT THE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

LESTER DENMON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

October 28, 2016

Submitted June 28, 2016 Decided

Before Judges Espinosa and Kennedy.

On appeal from the New Jersey Department of Corrections.

Lester Denmon, appellant pro se.

Christopher S. Porrino, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam R. Gibbons, Deputy Attorney General, on the brief).

PER CURIAM

Lester Denmon is an inmate at South Woods State Prison. The Department of Corrections (DOC) issued a final agency decision that upheld a finding Denmon committed prohibited act .701, unauthorized use of mail or telephone, N.J.A.C. 10A:4-4.1(a), and imposed sanctions.

N.J.A.C. 10A:18-2.9(a) states: "The inmate's name and number or the name of the inmate group shall legibly on the outside of all outgoing correspondence." This charge was based upon the fact - undisputed by the appellant - that he placed an envelope in outgoing mail that identified the sender as Skylar Gaines as the sender with an SBI number of 227259E. There is no inmate with that name or SBI number at South Woods State Prison.

Defendant pled guilty and requested the assistance of a counsel substitute, which was granted. In his statement at the disciplinary hearing, Denmon admitted his actions. He did not call any witnesses and declined the opportunity to cross-examine adverse witnesses. His counsel substitute argued for leniency. The sanction imposed was 10 days' detention, 90 days' administrative segregation and 15 days loss of recreational privileges. Both the detention and administrative segregation were suspended and were to be dismissed if Denmon remained charge-free for a period of 60 days.

Denmon presents the following arguments

POINT I

THERE WAS NOT ANY SUBSTANTIAL EVIDENCE TO FIND APPELLANT GUILTY OF THE WRITTEN CHARGE.

A. RESPONDENT FAILURE TO CHARGE *803 BECAUSE APPELLANT'S LETTER NEVER LEFT THE UNIT OR THE PRISON BECAUSE SCO'P. DAVIS CONFISCATED IT.

B. RESPONDENT HAVE NO NOTICE SETFORTH SPECIFIC ON THE ALLEGATIONS THAT APPELLANT WAS WRITTEN BECAUSE APPELLANT DID NOT COMMIT ANY UNAUTHORIZED MAIL USAGE NOR TELEPHONE USAGE.

POINT II

APPELLANT, LESTER DENMON SHOULD HAVE BEEN FOUND NOT GUILTY WHEN THERE WAS NO CREDIBLE EVIDENCE TO SUPPORT THE 701 UNAUTHORIZED USE OF MAIL OR TELEPHONE CHARGE. YET, RESPONDENT WAS DETERMINED TO FIND APPELLANT GUILTY SIMPLY BECAUSE A CHARGE WAS WRITTEN.

POINT III

APPELLANT, LESTER DENMON LAST ADMINISTRATIVE CHARGE WAS IN 2013, FOR PROHIBITED ACT *002, AND THE REDUCED CHARGE AS WELL WAS NOT SUPPORTED PURSUANT TO N.J.A.C. 10A:4-9.15(A) (REDUCED TO 013 CHARGE) WAS USED TO RENDER A BIAS GUILTY FINDING THAT VIOLATED APPELLANT'S FIRST AMENDMENT RIGHT AND SUPPORT RETALIATORY CLAIM THAT VIOLATED DUE PROCESS/EQUAL PROTECTION RIGHTS, CONTRARY TO THE U.S. CONST. 14TH AMEND. AS CONSTITUTE DOUBLE JEOPARDY.

Our review of the DOC's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).

By admitting that he had used the name and SBI number of another as the sender on correspondence he placed in the outgoing mail, Denmon provided adequate evidence to support the finding of guilt on the charge. He does not retreat from any of those admissions or challenge the acceptance of his guilty plea. He challenges the sufficiency of the evidence based upon an argument that his conduct only rose to the level of an attempt that an officer erroneously accused him of addressing the letter to his victim and that the disciplinary action itself was arbitrary. These arguments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(D).

Defendant also argues he was denied due process and that reliance upon a prior administrative charge amounted to double jeopardy. These arguments also lack merit.

An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). Denmon has not claimed he was denied any of the rights enumerated in Avant: written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33.

Denmon also claims the hearing officer relied upon prior charges to find him guilty, action he termed "borderline double jeopardy." However, the summary of evidence relied upon shows the hearing officer relied upon the officer's report that Denmon "sent out mail listing a fake return address & sender" and Denmon's own admissions. Ra24, 27 Moreover, the earlier administrative charges were not for the same infraction. The facts therefore fail to provide a basis for the application of double jeopardy protections here. See Russo v. N.J. Dep't. of Corrs., 324 N.J. Super. 576, 586 (App. Div. 1999).

Affirmed.