STEVEN C. GADDY v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2570-08T1

STEVEN C. GADDY,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________

 

Submitted December 9, 2009 - Decided

Before Judges Stern and Sabatino.

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

Steven C. Gaddy, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Steven C. Gaddy seeks review of a final agency decision of the Department of Corrections imposing discipline upon him for possessing a cellular phone within his prison cell. Such cell phone possession by an inmate is prohibited under *.009 of the Department's code of conduct, N.J.A.C. 10A:4-4.1(a).

The record reflects that the cell of appellant and his cellmate at Northern State Prison was the subject of a routine search on October 29, 2008. Various items were removed from the cell by the searching officers. The following day, October 30, 2008, the contents of what had been seized from the cell were examined more closely, and a contraband Samsung cell phone was found in a white sweat sock belonging to appellant. He was then charged with the *.009 violation.

Although he chose not to testify at his hearing, appellant raised, by way of defense, that the cell phone did not belong to him. Through his counsel substitute, appellant maintained that too much time had elapsed between the time of the search and the discovery of the cell phone to assure that the phone was actually present in his belongings at the time of the search. The hearing officer rejected that contention and instead found credible the evidence presented against appellant.

More specifically, the hearing officer found that appellant's property had been duly itemized after it was taken by the searching officers, and that it was segregated in the evidence room from his cellmate's seized belongings. The hearing officer further was satisfied that an appropriate chain of custody for the contraband had been established, and that there was no proof of any tampering.

The hearing officer imposed sanctions of 365 days of administrative segregation, fifteen days of detention, 365 days loss of commutation credits, 365 days loss of telephone privileges, and the permanent loss of contact visits. The hearing officer also recommended that the conduct be referred to the prosecutor.

Appellant filed an administrative appeal of his discipline with the office of the prison administrator. The Associate Administrator upheld the finding of guilt and the corresponding sanctions.

Appellant now appeals, challenging the hearing officer's finding of guilt and the penalties that were imposed. He principally argues that the record is insufficient to support the *.009 violation. He asserts that if a cell phone had been in his sock when his cell was searched, it inevitably would have bulged out enough to be noticed by the searching officers at that time.

Given our limited scope of review of prison disciplinary decisions, see Jacobs v. Stephens, 139 N.J. 212, 222 (1995); McDonald v. Pinchak, 139 N.J. 188, 202-03 (1995), we are satisfied that the record here suffices to provide substantial proof of appellant's wrongful possession of the cell phone.

The hearing officer rejected appellant's claim that the cell phone must have been illicitly mixed in with his belongings after-the-fact, and instead accepted the corrections officer's account that he did not go through appellant's belongings piece- by-piece until the day after the cell search, and thus was not yet aware of the phone concealed in the sock. We will not second-guess the hearing officer's reasonable factual finding on this point, nor his findings as to the proper itemization and segregation of the seized items, and maintenance of the chain of custody. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

Moreover, the procedures afforded to appellant in connection with his hearing also were adequate. See Avant v. Clifford, 67 N.J. 496, 528-32 (1975) (prescribing minimal procedural due process norms for prison disciplinary hearings).

Affirmed.

During the course of the search, a canine dog trained to detect electronic devices ingested rat poison that was sprinkled on meat left on the floor of appellant's cell. Because of that conduct, appellant was separately disciplined for abuse or cruelty to animals under *.008. His sanctions for that offense are the subject of a related appeal, A-2456-08T1, also being decided today.

The record contains no indication that appellant was criminally prosecuted for his actions in this matter.

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A-2570-08T1

December 22, 2009