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Jones v. New Jersey Dep't of Corrections

November 27, 2007

KAREEM JONES #314934, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Determination of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 7, 2007

Before Judges Skillman and Yannotti.

Kareem Jones, an inmate at East Jersey State Prison, appeals from a final determination of the New Jersey Department of Corrections, which found that he committed prohibited act *.002, assault on any person, in violation of N.J.S.A. 10A:4-4.1(a). We affirm.

The facts that gave rise to this matter occurred on August 20, 2006. On that date, Senior Corrections Officers Bush and Sestito were escorting Jones from the yard back to the housing unit when, according to the officers, Jones spit at and kicked Officer Sestito. Officers Bush, Fisher, and Sestito filed reports concerning the incident, in which they stated that Jones had assaulted Officer Sestito.

Jones was charged with committing prohibited act *.002, and on August 21, 2006, Jones was served with a copy of the charge. Sergeant Andrews investigated the matter. Jones pled not guilty and, according to Andrew's report, said that he wanted the matter investigated by Internal Affairs. Jones did not ask that any witnesses be interviewed. Sergeant Andrews determined that the charge had merit and he referred the matter to "court line" for a hearing. Jones requested the assistance of counsel substitute.

The hearing was initially scheduled for August 24, 2006; however, the hearing officer postponed the matter because he required a statement from inmate Cunningham and because Jones requested a polygraph examination. On August 29, 2006, the associate administrator denied the polygraph request because Jones had not "supplied any specific issues with the disciplinary charges that [could not] be addressed at the time of the disciplinary hearing."

Cunningham provided a statement dated August 28, 2006, in which he stated that on the day of the incident, he was walking directly behind Jones as the inmates were returning from the yard. Cunningham wrote that he witnessed Officer Sestito "ram" Jones into the metal door while he was handcuffed. According to Cunningham, the officer "slammed" Jones on the floor and the officer claimed that Jones spit on him to justify the assault. Cunningham said that the officer had "a long standing feud with" Jones.

Inmate James Edwards also submitted a written statement. He stated that he was standing at the door to his cell next to the showers. He said that he witnessed two officers escorting Jones, and both officers slammed Jones "against the gate then to the ground and punched him in the face." According to Edwards, one of the officers asked Jones why he spit on him. Edwards said that he "saw the whole thing" and Jones never spit on the officer.

The hearing was rescheduled for September 8, 2006, but was again postponed because the hearing officer required a statement from Officer Camano. The officer provided his statement on September 11, 2006. Camano wrote that, when Jones was being escorted from the yard, he spit at and kicked Officer Sestito.

Jones provided a lengthy written statement concerning the incident. Jones wrote that he was in the prison yard and Officer Bush was staring at him in a "violent/aggressive manner." Jones asked Bush whether he had done something wrong, and Bush told Jones that he would look at him any "way he liked." Jones stated that later, Officers Bush and Camano came to escort him back into the prison. At the time, Inmate Cunningham was being escorted by Officers Williams and Sestito.

According to Jones, as they were waiting for the door to be opened, he and Bush exchanged "disrespectful remarks." Jones insisted that he did not make any statements or physical gestures threatening the officer, and did not try to lunge at Officer Bush or try to pull away from Officer Camano. Jones asserted that, after they entered the prison, Bush took him by the arm and slammed him into the left side of the metal door frame, "making it seem like [he] tried to run/pull away of [Officer] Camano."

The hearing officer found Jones guilty of the charge. On the adjudication form, the hearing officer wrote that Officer Sestito's statement was credible and was supported by the statements submitted by the other officers. The hearing officer noted that he had considered Jones's statement, as well as the statements furnished by Inmates Cunningham and Edwards. The hearing officer imposed the following sanctions: ...


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