SHAW v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NATHAN SHAW, Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

No. A-3318-08T2.

Superior Court of New Jersey, Appellate Division.

Submitted February 9, 2010.

Decided March 8, 2010.

Paula T. Dow, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

Before Judges Parrillo and Ashrafi.

PER CURIAM.

This is a prison disciplinary appeal. Nathan Shaw, an inmate currently confined at South Woods State Prison, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding him guilty of prohibited act *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate, i.e., a cellular telephone, while appellant was an inmate at the Bo Robinson community release facility in Trenton, in violation of N.J.A.C. 10A:4-4.1. We affirm.

The evidence established that on December 15, 2008, Shaw was observed talking on a black and silver Virgin Mobile cell phone, with the charger attached, by Shift Supervisor Cecil Rashford and Operation Counselor Errol Coombs, who were conducting a routine check of the Hope Lane Unit. The cell phone and charger were confiscated.

After reviewing the evidence, the hearing officer adjudicated Shaw guilty of the *.009 charge and imposed sanctions of 15 days detention, with credit for time served (CTS), 210 days of administrative segregation, permanent loss of contact visit (PLCV), 120 days loss of phone privileges, and confiscation of the contraband. That same day, Shaw filed an administrative appeal. On January 26, 2009, the Associate Prison Administrator modified the sanctions to suspend the 210 days in administrative segregation for sixty days. The effect of suspending the time in administrative segregation was that if Shaw remained "charge free" for sixty days, he would not have to serve that portion of his sanction.

This appeal follows, in which appellant raises the following issues:

I. DHO, FAILED TO ADHERE TO TIME LIMITS AS PRESCRIBED IN 10A:4-9.7.

II. INMATE WAS NOT PERMITTED TO BE PRESENT THROUGHOUT THE DISCIPLINARY HEARING AS PRESCRIBED IN 10A:4-9.10.

III. INMATE WAS DENIED HIS RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES DUE TO CIRCUMSTANCES BEYOND HIS CONTROL.

IV. DHO RELYING ON REPORTS SUBMITTED BY ADVERSE WITNESSES WAS NOT SUFFICIENT EVIDENCE TO FIND INMATE GUILTY OF 10A:404.1(a). *009.

After reviewing the record in light of the arguments advanced by the parties, we conclude that the issues presented by appellant are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). The agency decision is supported by substantial, credible evidence in the record, Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980), and the administrative adjudication comported with procedural due process. See Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995).

As to the latter, Shaw received timely notice of the charge. The matter was thoroughly investigated and, in fact, the hearing was postponed several times to gather additional information based on Shaw's allegation that the reporting employee, Rashford, did not see him with the cell phone. In addition, Shaw requested, and was provided, counsel substitute to assist him in his representation. Shaw and counsel substitute were shown the adjudication report and all documentary evidence utilized by the hearing officer. The matter was heard by an impartial tribunal, namely a member of DOC's Central Office Staff. Furthermore, Shaw was permitted to make a statement and availed himself of that opportunity, as did his counsel substitute. Shaw was free to call witnesses on his behalf, which he chose not to do. He was also afforded the opportunity to confront Shift Supervisor Rashford and Counselor Coombs and, in fact, the matter was postponed twice to permit him to prepare questions for the confrontation before being denied any further opportunity for cross-examination. Lastly, substantial evidence supports the finding of guilt in that Shaw was seen by two Bo Robinson staff members using a cell phone with a charger attached.

Despite the fundamental fairness of this process, Shaw nevertheless complains the hearing officer failed to adhere to the time limits prescribed in N.J.A.C. 10A:4-9.7; excluded him from being present at multiple disciplinary hearings; and denied him confrontation. We disagree. Some of the postponements of Shaw's disciplinary hearings were occasioned by the need to further investigate his contrary claims, and others to accommodate his request for confrontation. As such, the postponements were necessary to protect Shaw's due process rights and were not in violation of them. N.J.A.C. 10A:49-.8(c). Moreover, the dates Shaw claims he was excluded from the hearings were the days on which the hearings were postponed. Shaw was not excluded from any disciplinary hearing adjudicating his guilt of the *.009 charge. As to his right of confrontation, suffice it to say, Shaw was afforded ample time and opportunity to present written questions of Rashford and Coombs, but failed to offer confrontation when the hearing convened eight days after his initial request.

We conclude that the DOC's ultimate determination is sufficiently grounded on substantial credible evidence, and the result of a fundamentally fair administrative adjudication. Henry, supra, 81 N.J. at 579-80.

Affirmed.

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