ANTHONY LEAHEY v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5281-05T15281-05T1

ANTHONY LEAHEY,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted February 14, 2007 - Decided March 5, 2007

Before Judges Skillman and Lisa.

On appeal from a Final Decision of the Department of Corrections, 452851C/423081.

Anthony Leahey, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Sean M. Gorman, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Anthony Leahey, a New Jersey State Prison inmate, appeals from a final decision of the Department of Corrections (DOC) adjudicating him guilty of disciplinary infraction .256, refusal to obey an order of any staff member. See N.J.A.C. 10A:4-4.1(a). The hearing officer imposed a sanction of thirty days' loss of contact visit privileges, suspended for sixty days. After appellant filed an administrative appeal, the Assistant Superintendent issued a final decision on June 6, 2006, upholding the decision of the hearing officer. This appeal followed. We affirm.

On May 27, 2006, at 2:55 p.m., appellant was participating in a contact visit. An announcement was made over the public address (P.A.) system that visiting hours were over and that all inmates must report to the count area. At 2:59 p.m., the curtain that separates the count area from the visiting area was closed, and appellant had not yet reported to the count area. His defense was twofold. He testified at the hearing that he "honestly didn't hear the announcement." Further, he contended that the inmate handbook provides that visiting hours do not end until 3:00 p.m.

Appellant declined the opportunity to confront and cross-exam witnesses or to call witnesses. The hearing officer accepted the information in the report, namely that the announcement was made over the P.A. system and, four minutes later, appellant had not responded. The hearing officer rejected, on credibility grounds, appellant's contention that he did not hear the announcement. The hearing officer made these findings:

Lt. Murray reports that at the completion of ct [contact] visits, all inmates were ordered via the P.A. system to report to the count area. Inmate did not report as told. Inmate pleads not guilty, stating he didn't hear the announcement. This is difficult to believe, as the announcement was made over a P.A. system. The staff report is clear and inmate was not in the proper area at the completion of visits. Charge upheld.

Appellant raises these points on appeal:

POINT I

THE HEARING OFFICER'S DECISION FINDING APPELLANT GUILTY OF VIOLATING PRISON RULES WAS ARBITRARY AND CAPRICIOUS AND NOT BASED UPON SUBSTANTIAL EVIDENCE AS REQUIRED IN N.J.A.C. 10A:9.15(a).

POINT II

THE HEARING OFFICER FAILED TO STATE HIS REASONS FOR BELIEVING THE OFFICER'S VERSION OVER THE APPELLANT'S AND HIS WITNESS, THUS, VIOLATING APPELLANT'S RIGHT TO DUE PROCESS OF LAW.

We reject these arguments.

We have reviewed the record and we are satisfied that the reports relied upon by the hearing officer and Assistant Superintendent provide the required "substantial" evidence to support the disciplinary violation against appellant. See McDonald v. Pinchak, 139 N.J. 188, 195 (1995); N.J.A.C. 10A:4-9.15(a). We will not interfere with a final administrative decision that is supported by sufficient credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); R. 2:11-3(e)(1)(D).

The report of the incident provided sufficient credible evidence to support the decision. The hearing officer and Assistant Superintendent acted within their authority and discretion in rejecting as incredible appellant's contention that he did not hear the announcement. The hearing officer's findings adequately summarize the evidence and the basis for finding appellant guilty.

We are further satisfied from our review of the record that the disciplinary proceedings were conducted in accordance with all applicable due process requirements. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Appellant's arguments that he was deprived of his due process rights lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-5281-05T1

 

March 5, 2007