DAVID BATTLE 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NOT FOR PUBLICATION WITHOUT THE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-3073-05T13073-05T1

DAVID BATTLE,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

__________________________________________________________

 

Submitted November 8, 2006 - Decided December 14, 2006

Before Judges Holston, Jr. and Grall.

On appeal from a Final Agency Decision of the Department of Corrections.

David Battle, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, David Battle, appeals the January 14, 2006 disposition of disciplinary decision of the Department of Corrections (DOC), upholding the January 6, 2006 decision of the hearing officer (HO). This decision found appellant guilty of committing prohibited act *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate such as, but not limited to, a cellular telephone, other communication device and/or computer and/or related device and peripheral. Fifteen days detention, 365 days administrative segregation, 365 days loss of commutation time, and 365 days loss of contact visits were imposed as sanctions. We affirm the adjudication of guilt but remand for reconsideration of sanctions.

Appellant is an inmate (IM) currently incarcerated at the New Jersey State Prison in Trenton. On December 22, 2005, a wing search was conducted on the unit where appellant is housed. Senior Correction Officer (SCO) Russo conducted a search of appellant's cell, where he discovered on the floor a small dark colored power supply unit with a two to three foot black cord and plug. The brand name "Seimens," the model Astec DA2-3101US-(L), and serial number B419 R7 0332 C8 appeared on the device. SCO Russo suspected that the power supply unit was a cellular telephone charger, which inmates are prohibited from possessing. As a result, the charger was seized, photographed and secured. Appellant was charged with disciplinary infraction *.009.

On December 23, 2005, Sergeant (Sgt.) Daniels served appellant with the disciplinary charge. Appellant plead not guilty. He admitted possession of the item but claimed that the charger was an adapter to a beard and mustache trimmer. Appellant contended that SCO Maze had previously seized the charger and returned it to him. Appellant requested a witness statement from SCO Maze. SCO Maze confirmed that "[he] did take the item earlier in the year but gave it back to the I/M."

A court line adjudication on the charge was adjourned several times so that further investigation into the use of the charger could be conducted. In conducting further investigation, Sgt. Daniels found "on line" the identical charger, based on the model displayed on the charger. The internet website print-outs identify this charger as a "wall unit travel charger for [] cellular phone [use]," and as a "power supply for telephone and desktop charger." The unit is not identified for use as a mustache or beard trimmer charger. At court line, appellant did not produce the trimmer to which he claimed the charger fit.

On January 6, 2006, the HO adjudicated appellant guilty of the charge. The HO found substantial evidence to support the disciplinary charge, based on the reports of SCO Russo and Sgt. Daniels, the photograph of the charger, and the website reports admitted into evidence, which demonstrated the charger was designed to charge cellular telephones.

On January 7, 2006, appellant appealed the decision to the Administrator of the prison. On January 14, 2006, the assistant superintendent (AS) upheld the guilty finding and sanctions.

I.

Appellant contends that the HO was biased, that the investigation was unauthorized, and that the finding was not supported by substantial credible evidence. These contentions are without merit.

Appellant claims that his due process rights were violated because the investigating sergeant conducted an unsolicited investigation. An investigating officer is authorized, pursuant to N.J.A.C. 10A:4-9.5, to conduct an investigation to determine whether the charge has merit. N.J.A.C. 10A:4-9.5(e) states, "the investigator shall thoroughly investigate the incident." Sgt. Daniels investigated the incident based upon appellant's claim that the charger was for an electric beard trimmer. In order to investigate whether the charger was intended for use with a beard trimmer, Sgt. Daniels conducted "on line" research regarding the designed uses for the charger.

Pursuant to N.J.A.C. 10A:4-9.5(g), the investigator may include in his investigative report his "conclusions of what in fact happened" as a result of his investigation. Sgt. Daniels included in his investigation report his conclusion that based on his on line investigation of the uses for the charger that the charger was for a cell phone, not a beard trimmer. We are satisfied this research was entirely appropriate and necessary to the adjudication of the charge.

Appellant contends that the Department's Special Investigations Division (SID) should have conducted the investigation, not the investigating officer. In some instances, the DOC may forward a matter to SID. However, this determination is within the DOC's discretion. We are satisfied, that the investigation was appropriate and consistent with N.J.A.C. 10A:4-9.5.

"Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). As explained in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion."

Here, the disciplinary charge was supported by the officers' reports, appellant's admission that the charger was his, and Sgt. Daniels' investigation showing that the charger's use was for a cell phone, not a beard trimmer. Although appellant claimed that the charger was for his beard trimmer, he failed to produce the trimmer to which he claimed the charger fit. The HO found that an identical charger listed on the internet was "specific for the charging of electronic equipment including cell phones." Based on the foregoing, we are satisfied that there was substantial credible evidence to support the charge and appellant's adjudication of guilt.

II.

A decision as to appropriate sanctions for a disciplinary violation made by a HO must be reasonable and guided by the concept of fundamental fairness. Ramirez v. Dep't Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). N.J.A.C. 10A:4-9.17(a) states that disciplinary sanctions may be individualized. Among the factors that should be considered are the "setting and circumstances of the prohibited behavior." N.J.A.C. 10A:4-9.17(a)2.

Appellant claims that earlier in the year SCO Maze had found the charger and returned it to him. Appellant further contends that because SCO Maze returned the item to him he believed the item was not contraband. SCO Maze confirmed that he had previously found the item and returned it to appellant, in a statement made to Sgt. Daniels.

The HO did not consider that circumstance as a mitigating factor. The HO imposed 15 days detention, 365 days administrative segregation, 365 days loss of commutation credit, and 365 days loss of contact visits, the maximum allowed under N.J.A.C. 10A:4-5.1 for an asterisk offense, and the sanction was affirmed by the AS on administrative appeal.

We are satisfied that the AS's failure to take this "circumstance[] of the prohibited behavior" into consideration constituted a mistaken exercise of discretion. Accordingly, we affirm the DOC's decision upholding the HO's adjudication of guilt but remand the matter to the AS to reconsider the sanctions imposed, so that the sanctions imposed consider the "circumstances of the prohibited behavior."

Affirmed as to conviction; remanded for reconsideration of sanctions.

 

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A-3073-05T1

December 14, 2006