CHRISTOPHER JONES v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1554-06T11554-06T1

CHRISTOPHER JONES,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted October 29, 2007 - Decided

Before Judges S.L. Reisner and Baxter.

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

Christopher Jones, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Christopher Jones appeals from a June 15, 2007 Final Administrative Decision of the Department of Corrections (DOC) finding him guilty of an institutional infraction. DOC found Jones guilty of violating *.259, for failing to comply with an order to submit a urine specimen for prohibited substance testing. DOC imposed a loss of 120 days of commutation time, permanent loss of contact visits and 365 days' urine monitoring. We affirm.

Jones was an inmate who was serving the balance of his sentence at a halfway house known as Kintock. Staff at the halfway house permitted Jones to leave the premises on September 8, 2006 so that he could pick up his paycheck from his place of employment. Although Kintock staff instructed Jones to return no later than 2:00 p.m. that day, he did not return until September 9, 2006, at 9:00 p.m. DOC rules require inmates who leave the halfway house, with or without permission, to provide a urine specimen for drug testing within two hours of return to the halfway house. Jones admitted that he did not provide a urine specimen within that time period. In fact, Jones pled guilty to failing to comply with an order to submit a specimen for prohibited substance testing, in violation of *.259.

Jones's appeal concerns the procedural aspects of the hearing process. He argues that the disciplinary hearing was held in an untimely manner; DOC officials failed to serve him with notice of the charges within forty-eight hours as required by DOC regulations; the sanction of 365 days' urine monitoring was not a valid sanction; and the disciplinary hearing was not fair. Defendant also argues that the "escape charge never should have been written." That issue is moot, however, because DOC dismissed the escape charge prior to issuing the Final Administrative Determination. For that reason, we will not entertain that claim.

Our scope of review is a narrow one. Only where an agency's decision is arbitrary or capricious or unsupported by credible evidence in the record may it be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The agency's conclusion that Jones was guilty of the charged violation is supported by institutional records that fully document the events, and by Jones's admission that he had access to water during the two hours allotted to him to produce a urine sample. Moreover, Jones entered a plea of guilty and did not dispute the *.259 charge. Accordingly, there was ample evidence to support the finding of guilt.

We next address Jones's claim that the disciplinary hearing was not held in a timely matter. Pursuant to N.J.A.C. 10A:4-9.8(c), inmates like Jones, who are placed in pre-hearing detention, "shall receive a hearing within three calendar days of their placement in Prehearing Detention unless there are . . . unavoidable delays or reasonable postponements." The hearing officer is obliged to consider the reason for the delay, the length of delay, whether the inmate has been prejudiced, and the seriousness of the alleged infraction in deciding whether to dismiss the charges as a sanction for any violation of the three-day limit set forth in N.J.A.C. 10A:4-9.8(c). The record demonstrates that a copy of the institutional charge was served on Jones less than three hours after his return to Kintock, and the hearing on the charges began the next day, September 12, 2006. Ultimately, the hearing was not completed until September 22, 2006, because Jones was in the process of being transferred to the Central Reception and Admissions Facility. Additionally, Jones does not allege any prejudice as a result of that ten-day delay. Under the circumstances, we reject his claim that the brief delay in the disciplinary hearing warranted dismissal of the charges.

Jones's contention that notice of the charges was not served upon him in a timely manner also lacks merit. Although N.J.A.C. 10A:4-9.2 requires DOC to serve an inmate with a copy of the disciplinary charges and any supporting documents within forty-eight hours of the violation, here DOC was unable to serve the documents on Jones because he was not in custody. The documents were served on him within two hours of his return, and accordingly, we reject his claim of a N.J.A.C. 10A:4-9.2 violation.

Jones's next argument, that the sanction of 365 days' urine monitoring is an invalid sanction, lacks merit. The Administrative Code clearly establishes that a hearing officer is permitted to impose 365 days' urine monitoring as "part of a sanction for a prohibited substance related" infraction. N.J.A.C. 10A:3-5.10(b)(10).

Nor do we agree with Jones's contention that the disciplinary hearing was not fair. Jones was provided with a counsel substitute who assisted him during the June 15, 2007 hearing. He was provided with written notice of the charges at least twenty-four hours prior to the hearing; an impartial hearing officer; and a written statement of the evidence relied upon and the reasons for the sanctions imposed. The hearing satisfied all requirements established for prison disciplinary hearings. McDonald v. Pinchak, 139 N.J. 188 (1995). Accordingly, Jones's contention that the hearing was unfair lacks merit.

Affirmed.

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A-1554-06T1

November 7, 2007