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Pandure v. New Jersey Dep't of Corrections

December 17, 2007

JAMIE PANDURE, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2007

Before Judges Wefing and Lyons.

Appellant Jamie Pandure is an inmate currently incarcerated at New Jersey State Prison (NJSP) in Trenton. Pandure appeals from a final agency decision of the Department of Corrections (DOC) imposing disciplinary sanctions on him for committing prohibited act .452, "using any equipment or machinery which is not specifically authorized," in violation of N.J.A.C. 10A:4-4.1(a). Because we find that Pandure was afforded all appropriate procedural guarantees and that there is substantial credible evidence in the record to support the DOC decision, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On December 6, 2006, Pandure was enrolled in a master of business administration degree program offered at NJSP. In connection with that program, inmates were permitted to use a computer. On December 6, 2006, the teacher observed that whenever she entered the classroom, Pandure would turn off his computer screen. The teacher, therefore, seized the computer disk being used by Pandure to inspect the contents. The contents revealed a book entitled "Sex Addict." Because the teacher discovered that Pandure was using the computer for a purpose unrelated to his business class, he was initially charged with committing prohibited act *.009, "misuse . . . [of] an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention."

The charges were served upon Pandure on December 7, 2006. On December 11, 2006, the initial hearing was scheduled, but was postponed in order to allow the hearing officer to review the disk that had been seized from Pandure. On December 15, 2006, the hearing resumed with a different hearing officer. The hearing officer modified the *.009 charge to a .452 charge. The hearing officer also granted Pandure's request for the assistance of a counsel substitute.

The hearing officer reviewed the disciplinary report, as well as other related reports, including a report from the teacher. Pandure was afforded an opportunity to make a statement and to call and question witnesses. He requested that a former DOC employee, Jan Troy, testify. However, since she was no longer an employee, she was unable to provide testimony.*fn1

Pandure did not testify, nor did he take the opportunity to confront or cross-examine any witnesses.

The hearing officer, relying primarily on the teacher's report, concluded that Pandure was using the State's computer for an unauthorized purpose. The hearing officer, therefore, recommended a sanction of time served in disciplinary detention, confiscation of the disks, referral to the classification committee for a job and/or assignment review, and referral to mental health services.

On December 26, 2006, Pandure filed an administrative appeal of the hearing officer's decision with the prison administrator. On December 29, 2006, the assistant superintendent upheld the finding and imposition of sanctions. This appeal ensued.

Pandure presents the following argument for consideration on appeal:

POINT I

THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS FINDING THE APPELLANT GUILTY OF VIOLATING PRISON RULES SHOULD BE VACATED BECAUSE IT WAS ARBITRARY AND CAPRICIOUS, IT WAS NOT BASED ON SUBSTANTIAL CREDIBLE ...


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