KEANE BLANN v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1417-05T11417-05T1

KEANE BLANN,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

_____________________________

 

Submitted January 31, 2007 - Decided March 12, 2007

Before Judges A.A. Rodr guez and Collester.

On appeal from a Final Agency Decision of

the Department of Corrections.

Keane Blann, appellant pro se.

Stuart Rabner, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Christopher C.

Josephson, Deputy Attorney General, on the

brief).

PER CURIAM

This is an inmate disciplinary appeal from a final agency decision of the New Jersey Department of Corrections imposing disciplinary sanctions upon inmate Keane Blann after an adjudication of guilt as to prohibited act *.203 (possession of any prohibited substances such as drugs) in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On August 14, 2005, Blann was an inmate at Bayside State Prison. Confidential information was received by prison authorities that controlled dangerous substances and weapons could be found in several cells. A search was conducted, and Senior Corrections Officer Longo found brown powder appearing to be heroin inside a folded piece of paper within an open rice container located in Blann's locked footlocker. He was charged with committing prohibited act *.203, and the substance was determined to be heroin after testing by the New Jersey State Police laboratory.

On August 15, 2005, the charge, in writing, was served upon Blann. The first hearing, scheduled for August 17, 2005, was postponed to permit the hearing officer to ascertain the reason for the search of Blann's cell. The hearing scheduled for August 24, 2005 was postponed pending the receipt of results from the New Jersey State Police laboratory. After the results were received on September 15, 2005, a hearing scheduled for that date was postponed on request of Blann's counsel substitute.

The hearing officer reviewed the following: disciplinary reports; lab report; confrontation questions and answers; a Special Investigation Division (SID) report; and a written statement of Blann's cellmate stating that Blann's locker was unlocked before the search was conducted. Blann's counsel substitute argued that the delay in adjudication was a due process violation. However, the hearing officer found to the contrary that the hearing was commenced during the time frame prescribed by the DOC regulations. He concluded there was substantial evidence to support the *.203 violation.

On September 28, 2005, the Assistant Superintendent upheld the decision of the hearing officer, declined the request for leniency, and imposed the recommended sanctions of fifteen days detention, 180 days administrative segregation, 180 days loss of commutation time, and permanent loss of all contact visits.

Inmate Blann sets forth the following arguments for our consideration:

POINT I - APPELLANT'S CONSTITUTIONAL RIGHTS TO AN ADEQUATE HEARING AND EFFECTIVE CROSS-EXAMINATION WAS ARBITRARILY VIOLATED.

POINT II - THE DOC HAS RUBBER-STAMPED THE PROCEEDINGS AT BOTH THE HEARING AND APPEAL STAGES.

POINT III - RESPONDENT FAILED TO BE AN IMPARTIAL FACTFINDER.

We find no violation of the inmate's due process rights. Disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant are inapplicable. Avant v. Clifford, 67 N.J. 496, 522 (1975). The limited protections afforded prisoners subject to disciplinary sanctions include the following:

1. Written notice of the charges 24 hours

prior to hearing;

2. An impartial tribunal, which may consist of personnel from the central office staff of the DOC;

3. A limited right to call witnesses and present documentary evidence;

4. A limited right to confront and cross-examine adverse witnesses;

5. A right to a written statement of the evidence relied upon and the reasons for the sanctions imposed.

6. 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.

[Avant, supra, 67 N.J. at 525-33.]

See also McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stephens, 139 N.J. 212 (1995).

The record clearly shows that Blann was afforded all due process rights. He and counsel substitute were able to confront and question the correction officers by submission of written questions with the officers' verbal answers recorded by the hearing officer. While the regulation does not permit the inmate to be present during the officers' testimony, there are obvious safety and security issues justifying the restriction. We see no deprivation of any protected rights of an inmate in the procedure employed by the DOC.

The remaining arguments set forth by Blann are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that the record demonstrates that the evidence was clear and compelling that Blann possessed the substance determined to be heroin.

 
Affirmed.

(continued)

(continued)

5

A-1417-05T1

March 12, 2007