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Whitted v. Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2007

CHARLES WHITTED, PETITIONER-APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT-RESPONDENT.

On appeal from the final decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 5, 2007

Before Judges Skillman and King.

In this prison disciplinary appeal by an inmate of the Adult Diagnostic and Treatment Center at Avenel, appellant argues that he was denied the opportunity to confront or cross-examine the female corrections officer who reported he allegedly exposed himself to her. The appeal is from an adjudication of disciplinary infraction *.053, indecent exposure in violation of N.J.A.C. 10A:4-4.1. A sanction of fifteen days detention, sixty days loss of commutation credit, and thirty days loss of recreation privileges was imposed.

The record discloses that the adjudication of infraction, signed by appellant's counsel substitute, states at line 14(c) that the right to confront or cross-examine a witness was provided. The form states: "All witnesses the inmate asks to be called including those requested through the investigator," and the hearing officer noted, "None requested at the hearing nor [sic] investigation." In addition, appellate and counsel substitute were offered the opportunity to confront or cross-examine witnesses, during both the investigation and the adjudication, and declined the offer. Line 15 of the adjudication form states, "List of adverse witnesses the inmate requests to confront/cross-examine including those requested through the investigator," and the hearing officer there noted: "Declined when offered at the hearing."

Appellant's claim of deprivation of confrontational rights is wholly unsupported by the record. Nor was this claim ever raised at any point before the DOC. Moreover, the refusal to reinvestigate or reopen the matter was justified and we see no abuse of administrative discretion in this refusal. See N.J.A.C. 10A:4-11.4. We see nothing arbitrary or capricious about DOC's procedure or decision here.

Appellant also complains he was not provided sufficient information about the past warning that the corrections officer reported she had given him about violations of the "institutional dress code." We cannot tell if the hearing officer even considered those past warnings. If appellant did "flash" the corrections officer, as the hearing officer found, such past warnings are not a prerequisite to the adjudication of the disciplinary infraction.

We are satisfied that the adjudication is supported by the record and this appeal is without merit. See In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980); Barone v. Dep't of Human Serv., Div. of Med. Asst., 210 N.J. Super. 276, 185 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Affirmed.

20070718

© 1992-2007 VersusLaw Inc.



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