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Russo v. Dep't of Corrections


March 14, 2007


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

Per curiam.


Submitted November 15, 2006

Before Judges Collester and Messano.

James Russo (Russo) appeals from the final administrative decision of the Department of Corrections (DOC) finding him guilty of violating N.J.A.C. 10A:4-4.1(a). We have carefully considered the record and, in light of controlling legal standards, we affirm.

In October, 2004, while serving a ten year sentence for criminal attempt and conspiracy, Russo was transferred to the Kintock Halfway House in Bridgeton, and, as part of that program's requirements, he was assigned to work at the I.G.A. supermarket in Atlantic City.

The record before the hearing officer revealed that on December 2, 2005, Russo presented Kintock's employment counselor a written request from I.G.A. seeking the counselor's permission to allow Russo to carry a cell phone, supplied by the employer and used at work. The employment counselor informed both Russo and the employer that the request was denied.

On December 4 at 1:30 a.m., Russo was picked up after work at the Bridgeton bus station by Kintock's manager, Gary Myrie, who was to transport him back to the halfway house for the night. According to Myrie, Russo boarded the transport bus, and asked Myrie to hold the cell phone for him because he was not supposed to have it. Myrie refused and told Russo to surrender the phone, which he did. After checking with the employment counselor, who confirmed the denial of Russo's earlier request, Myrie charged Russo with disciplinary infraction *009, the misuse or possession of an electronic communication device not authorized for use or retention by an inmate.

Russo pled not guilty to the charge, requested the assistance of a counsel substitute, and declined any opportunity to obtain witness statements or to confront the witnesses against him. In the statement given to DOC's investigating officer, Russo claimed the phone was not working and that he never asked Myrie to hold it for him; rather, he surrendered the phone when he realized he had mistakenly taken it.

At the hearing, Russo testified that he served as the night closing manager for I.G.A. and that he only realized he still had the phone in his possession after he had locked the store and turned the alarm on. When he boarded the transport back to Kintock, he gave the phone to Myrie. The I.G.A. store manager submitted a letter that confirmed Russo was given the cell phone to use in emergencies and that the store alarm, once armed, would activate if Russo tried to re-enter.

The hearing officer adjudicated Russo guilty as charged and imposed the following sanctions: loss of recreation privileges for thirty days and loss of commutation credit for sixty days. Russo administratively appealed, specifically requesting leniency in the sentence; the Assistant Superintendent upheld the guilty finding but modified the sentence, suspending the penalties for sixty days.*fn1 Appearing pro se, Russo filed this appeal.

He does not raise any issues with respect to the procedural aspects of the hearing. Avant v. Clifford, 67 N.J. 496 (1975). Our independent review of the record satisfies us that he was accorded all of the procedural due process requirements articulated by the Supreme Court in McDonald v. Pinchak, 139 N.J. 188 (1995) and Jacobs v. Stephens, 139 N.J. 212 (1995).

Rather, we discern from his brief that he challenges the sufficiency of the evidence marshaled against him, claiming it was insufficient to establish his violation of disciplinary rule *009. We disagree.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). DOC's own regulations require the guilty finding be supported by substantial credible evidence. N.J.A.C. 10A:4-9.15(a). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In Re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961).

Here, there was sufficient evidence to support the disciplinary charge. By his own admission, Russo possessed an "electronic communication device," see N.J.A.C. 10A:1-2.2, without authority. Coincidentally, his specific request to carry the phone was denied only a few days earlier. While he contends for the first time in this appeal that he had carried contraband before and given it to his supervisors from the halfway house to hold for him, without incident, that does not excuse his clear violation of the regulation on this occasion. Lastly, although Russo claims the prohibited possession of the "electronic communication device" must take place in the correctional facility, the regulation does not contain any such limitation. N.J.A.C. 10A:4-4.1(a) provides,

An inmate who commits one or more of the following numbered prohibited acts shall be subject to disciplinary action . . . . . . . .

*.009 . . . possession . . . [of] an electronic communication device . . . that is not authorized for use or retention.

The violation of the regulation need not take place in the correctional facility, or, in Russo's case, in the halfway house itself.


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