Opinion
DOCKET NO. A-0328-13T4 DOCKET NO. A-0615-13T4
03-12-2015
STEVEN KADONSKY, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Steven Kadonsky, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief in A-0328-13; Jacobine Dru, Deputy Attorney General, on the brief in A-0615-13).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the New Jersey Department of Corrections. Steven Kadonsky, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief in A-0328-13; Jacobine Dru, Deputy Attorney General, on the brief in A-0615-13). PER CURIAM
Steven Kadonsky is presently serving a lengthy sentence at New Jersey State Prison in Trenton. He separately appeals final disciplinary orders entered by the Department of Corrections that we now consolidate and decide by a single opinion.
An investigation on July 8, 2013, suggested that Kadonsky made telephone calls on the inmate telephone system utilizing a fellow inmate's IPIN code. He was charged with committing prohibited act .701, which bars "unauthorized use of mail or telephone," N.J.A.C. 10A:4-4.1. At the conclusion of a hearing on July 11, 2013, Kandosky was found guilty; the hearing officer imposed a 120-day loss of telephone privileges, among other things. That determination was later upheld by the prison's assistant superintendent.
This appeal was assigned Docket No. A-0615-13.
THE .701 CHARGE FOR UNAUTHORIZED USE OF THE TELEPHONE MUST BE DISMISSED AS THE ACTIONS OF APPELLANT WERE NOT LISTED AS UNAUTHORIZED CONDUCT IN ANY PRISON INSTITUTIONAL MANUAL OR MEMORANDUM AND NEVER POSTED FOR INMATES TO SEE AT ANYTIME.We find no merit in this argument.
The inmate handbook provides specific regulations for telephone calling and, although it may not expressly state that another inmate's IPIN may not be used, it does clearly state that in making a telephone call, the inmate, when prompted, shall "enter your IPIN code" (emphasis added). We are satisfied that this direction provided sufficient notice that the use of another inmate's code was forbidden. We, therefore, affirm the final agency decision in this matter.
The second appeal is connected to the first. On July 30, 2013, a search of Kadonsky's call history was conducted and, as a result, Kadonsky was charged with making a three-way call and also with using the telephone despite the prohibition imposed by the earlier adjudication. Kadonsky responded with a written statement in which he denied making a three-way call and further claimed the hearing officer in the prior matter did not have the authority to take away his telephone privileges.
The hearing officer appears to have rejected the contention that use of phones following the earlier adjudication was itself a violation; the record appears not to have been clear as to whether Kadonsky received notice of the earlier sanctions by the time of the calls in question. Instead, the hearing officer found Kadonsky "violate[d] telephone procedures" because the inmate handbook permits "collect phone calls only" and "third party and credit card billing are not allowed." Consequently, the hearing officer imposed a fifteen-day detention period, a sixty-day loss of commutation time, a ninety-day period of administrative segregation, a thirty-day loss of recreational privileges, and a 365-day loss of telephone privileges. A final agency decision upheld the guilty finding and the sanctions imposed, and defendant appeals, arguing:
This appeal was assigned Docket No. A-0328-13.
THE INSTITUTIONAL CHARGE FOR MAKING A PREPAID CALL MUST BE DISMISSED BECAUSE MAKING A PREPAID CALL IS AUTHORIZED CONDUCT.We vacate the final agency order and remand for further proceedings.
This point incorporated other arguments also briefly discussed in this opinion.
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We find the administrative proceedings lacking in one critical respect — the hearing officer found Kadonsky guilty of an infraction that was not contained in the notice of the charges and without giving Kadonsky a fair opportunity to mount a defense to the amended charge. That is, after apparently recognizing Kadonsky could not be found to have committed the infraction charged, i.e., telephoning contrary to the earlier prohibition, the hearing officer found Kadonsky's conduct to be improper for another reason. Kadonsky was entitled to notice of at least twenty-four hours before being required to answer the amended charge. See N.J.A.C. 10A:4-9.16(a).
In addition, Kadonsky argues that the ultimate finding is not a violation; he contends that although the handbook does contain the statements quoted by the hearing officer — that an inmate is permitted to make collect phone calls "only" and that "third party billing and credit carding billing are not allowed" — a different custom or practice had come about in recent times. He asserts that most inmate calls are made on a prepaid basis. The Department has not responded to this assertion.
We conclude that Kadonsky was deprived of sufficient notice of the charge of having made other than a collect call. If the Department continues to press this charge, Kadonsky should not only be given sufficient time to prepare a defense, but the hearing officer should also consider any evidence or argument Kadonsky may present regarding his claim that the call or calls in question were prepaid and that the Department has permitted prepaid calls despite the contrary language of the inmate handbook.
The order under review in A-0615-13 is affirmed. The order under review in A-0328-13 is vacated, and the matter remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION