Opinion
DOCKET NO. A-3495-12T2
06-30-2014
PAUL YOUNG, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Paul Young, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Robert Lougy, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Fasciale.
On appeal from the New Jersey Department of Corrections.
Paul Young, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Robert Lougy, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). PER CURIAM
As of the time of this appeal, Paul Young was incarcerated at Northern State Prison, assigned to the Tully House, a residential community release program in Newark. Young is serving a three-year, three-month, four-day term of imprisonment for resisting arrest and possession of illicit narcotics. Young now appeals from a final disciplinary decision of the Department of Corrections (DOC), finding he committed prohibited acts *.009A (misuse, possession, distribution, sale or intent to distribute or sell an electronic communication device, equipment or peripheral that is capable of retaining or otherwise storing data) and *.257 (violating a condition of any community release program), in violation of N.J.A.C. 10A:4-4.1(a).
We do not know the degree of these offenses because the record before us does not include a copy of appellant's Judgment of Conviction.
We affirm. Based on the record before us, we discern no reasons to alter or otherwise interfere with the findings of the administrative disciplinary process and the sanctions imposed. We gather the following facts from the record developed before the disciplinary process.
On October 22, 2012, appellant signed a form to Consent to Participate in Program, agreeing to adhere to the rules and participate in the programs offered by Tully House. On February 3, 2013, a program counselor observed appellant "messing with the window panel." The counselor made this observation while walking by room 220 located on the second floor of the facility. Tully House staff members were dispatched to the room to further investigate.
A counselor found a piece of a nail clipper in appellant's pocket. Appellant was using the nail clipper piece as an impromptu or makeshift screwdriver to unscrew the screws that secured the window panel. When staff members pulled the window panel, they discovered two black and gray Verizon Samsung cell phones and a cell phone charger, both secreted within the window panel. The Tully House staff referred the matter to the DOC disciplinary process. A disciplinary hearing officer held a hearing on February 14, 2013, in which appellant was granted counsel substitute. The hearing officer found appellant guilty after affording him the right to testify and call witnesses. Appellant was also offered the opportunity to examine witnesses and cross-examine any witness called against him.
The DOC imposed as a sanction fifteen days detention with credit for any time served, administrative segregation, sixty days loss of commutation time, and ninety days loss of telephone privileges. On Young's challenge, the DOC internal appellate process upheld both the findings and the sanctions. Young now appeals to this court raising the following argument.
POINT ONE
MR. YOUNG WAS DENIED THE OPPORTUNITY TO CROSS EXAMIN [SIC] THE WITNESS WHO ACCUSED HIM OF VOILATION [SIC] AND THE RIGHT TO HAVE HIS CASE DISSMISSED [SIC] DO [SIC] TO DUE PROCESS. THEREFORE MR. YOUNG SEEKS RELIEF FORM [SIC] THE COURTS ON SUCH.
We reject this argument. It is undisputed that inmates assigned to the Residential Community Release Program are not permitted to possess such devices. Young thus violated N.J.A.C. 10A:4-4.1(a). The record shows Young was afforded all of the procedural due process rights he was entitled to receive. Avant v. Clifford, 67 N.J. 496, 522 (1975). In reviewing an inmate disciplinary hearing, we consider both whether there is substantial evidence that the inmate committed the prohibited act and whether the DOC followed regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-96 (1995).
These protections include written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal, which may consist of personnel from the central office staff; a limited right to call witnesses; the assistance of counsel substitute; and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Avant, supra, 67 N.J. at 525-33. Here, the record shows appellant was afforded these rights and the evidence presented amply supports the findings made by the hearing officer as upheld by the DOC's internal review process. We discern no basis to interfere or modify the sanctions imposed.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION