On appeal from State of New Jersey, Department of Corrections.
Brody, Muir, Jr. and Landau. The opinion of the court was delivered by Brody, J.A.D.
The opinion of the court was delivered by
Appellant is a state prisoner who was disciplined for violating rules and regulations applicable to state prison facilities
while serving a 10-year prison term in the Salem County jail. After he committed the disciplinary infraction with which he was charged, appellant was transferred to an adult state prison facility where the disciplinary proceedings were conducted pursuant to rules and regulations applicable to state prison facilities. He argues that because he was an inmate of a county jail at the time of the alleged infraction, he is subject to the rules and regulations applicable to that institution, and not the rules and regulations applicable to state penal institutions. He also contends that even if he were subject to the rules and regulations applicable to state prison facilities, he was denied due process because he did not receive notice of those rules and regulations before he committed the alleged infraction.
We ordinarily would not consider these issues because appellant did not raise them at the disciplinary hearing. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973). We depart from our usual rule because appellant raises important issues whose determination will have a significant effect on the time he will serve in prison. See State v. Latimore, 197 N.J. Super. 197, 214, 484 A.2d 702 (App.Div.1984), certif. den. 101 N.J. 328, 501 A.2d 978 (1985).
Because the term of appellant's custodial sentence was more than one year, the sentencing court had committed him "to the custody of the Commissioner of the Department of Corrections for the term of his sentence and until released in accordance with law." N.J.S.A. 2C:43-10a. Appellant was not placed in a state prison facility upon sentencing, however, because state prison facilities were overcrowded. Though a state prisoner, he was placed in a county jail pursuant to an emergency executive order by which the State reimburses counties for state prisoners kept in their jails. See County of Gloucester v. State of New Jersey et al., 256 N.J. Super. 143, 606 A.2d 843 (App.Div.1992) (declaring the "emergency" at an end, but staying its judgment for one year).
Appellant's status essentially was that of a state prisoner transferred to a county jail pursuant to the terms of a contract of reimbursement between the State and the governing body of the county. Prisoners so transferred "shall be subject to rules, regulations and discipline of the institution in which they are confined, except in so far as they conflict with the rules and regulations of the State board." (Emphasis added.) N.J.S.A. 30:4-85 (L. 1948, c. 203, § 1*fn1). The "State board" referred to by this 1948 statute was the State Board of Control of Institutions and Agencies created by L. 1919, c. 97, § 2.
The Legislature had granted that Board "complete and exclusive jurisdiction, supreme and final authority, and the requisite power to accomplish its aims and purposes in and upon . . . correctional institutions of the State . . . ." L. 1919, c. 97, § 4. Those powers, originally given to its predecessor board, the State Board of Charities and Corrections, included the ultimate authority to promulgate rules and regulations for the "custody, care and treatment of the inmates" of state prison facilities. L. 1918, c. 147, sec. 304.*fn2
Thus since 1948 the Legislature has recognized that there may be instances where an inmate serving a state prison sentence in a county jail will be subject to rules and regulations expressly applicable only to the jail which conflict with rules and regulations expressly applicable only to state prison facilities. In those instances, N.J.S.A. 30:4-85 mandates that the rules and regulations expressly applicable only to state prison facilities ...