DAVID G. WILSON 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NOT FOR PUBLICATION WITHOUT THE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-2620-08T12620-08T1

DAVID G. WILSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted October 5, 2009 - Decided

Before Judges Rodr guez and Yannotti.

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

David G. Wilson, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

David Wilson (Wilson), an inmate in the State's correctional system, appeals from a final determination of the Department of Corrections (DOC), imposing disciplinary sanctions upon him because he escaped from the halfway house, where he was being incarcerated. We affirm.

The following facts are relevant to this appeal. Wilson is presently serving a sentence at the Bayside State Prison. Previously, he had been incarcerated at Kintock I, a residential community release program or halfway house in Newark, New Jersey. On November 19, 2008, at 3:20 p.m., Javis Anderson (Anderson), a resident supervisor, went to pick up the Kintock residents at a community service site where they were working. All of the residents were present, except for Wilson.

Anderson notified his supervisor that Wilson was missing, and on November 20, 2008, the DOC issued an escape warrant for Wilson's arrest. On December 4, 2008, the DOC was informed that Wilson was in the custody of the Bernard Township Police Department, after having been arrested and charged with eluding and a stolen property offense.

The DOC charged Wilson with escape, which is prohibited act *.101 under N.J.A.C. 10A:4-4.1(a). Sergeant Davis delivered the charge to Wilson on December 5, 2008, and investigated the matter. Wilson pled not guilty and refused to give Sergeant Davis a statement. Sergeant Davis found that the charge had merit and referred the matter for a hearing. Wilson requested the assistance of counsel substitute and his request was granted.

The hearing took place on December 9, 2008. Neither Wilson nor his counsel substitute made a statement and Wilson did not seek testimony from any witnesses. The hearing officer found Wilson guilty of the charge and recommended the imposition of 15 days of detention, 365 days of administration segregation and the loss of 365 days of commutation time. The hearing officer stated that the sanctions were warranted because Wilson violated a position of trust by walking away from his halfway house placement.

On December 9, 2008, Wilson filed an administrative appeal with Assistant Superintendent Robert Buechele (Buechele). Wilson sought leniency. He stated that the he was "unconcerned with the new [criminal] charges" and believed that they "will be dismissed." He noted that he had not had a disciplinary charge "in years", had "completed many programs" and would "do better." Buechele rendered a final decision on the appeal dated December 11, 2008, affirming the finding of guilt, upholding the imposition of 15 days of detention and the loss of 365 days of commutation time but reducing the amount of administrative segregation from 365 to 90 days. This appeal followed.

Wilson argues that the hearing officer erred by finding that he had received a new criminal charge in the period when he was away from the halfway house. Wilson says that he did not escape but rather violated the terms of his community release program. Wilson asserts that the charges should be dismissed on the grounds of "due process." Having thoroughly reviewed the record, we are convinced that these arguments are entirely without merit.

The standard of review that applies in this appeal is well-established. When reviewing a determination of the DOC in a prisoner disciplinary matter, we consider whether there is substantial evidence that the inmate committed the prohibited act and whether, in making its decision, the DOC followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995).

We are convinced that there is substantial evidence in the record to support the Department's determination that appellant committed prohibited act *.101, escape. We are additionally convinced that, in adjudicating the disciplinary charge, the DOC afforded Wilson all of the process due to him under the applicable administrative regulations.

Wilson argues his absence from the halfway house was a violation of the conditions of his community release program rather than an escape. However, in his brief, Wilson says that that he was working as a volunteer on a job site away from the halfway house, "walked off the job" and was "living in the streets" for thirteen days when he was arrested in Somerset County. We are convinced that these facts provided ample support for the DOC's conclusion that Wilson's absence was, in fact, an escape from custody in violation of N.J.A.C. 10A:4-1.1, *.101.

Affirmed.

(continued)

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2

A-2620-08T1

October 19, 2009