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Allah v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 24, 2008

JUSTICE R. ALLAH, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 8, 2008

Before Judges Skillman and Winkelstein.

Appellant, Justice R. Allah, is an inmate at the New Jersey State Prison in Trenton, serving a life term following a conviction for murder. He appeals from a September 5, 2006 final administrative determination of the New Jersey Department of Corrections (DOC), finding him guilty of three prohibited acts: .701, unauthorized use of the mail or telephone; *.803/*.009, attempting to possess electronic equipment (a cellular phone); and *.803/*.306, attempting to commit conduct that disrupts or interferes with the security or orderly running of the correctional facility.

The agency imposed the following sanctions: (1) charge .701 - 15 days detention, 90 days administrative segregation, 60 days loss of commutation time, and 30 days loss of phone privileges, to be served consecutive to the sanctions imposed on charge *.803/*.009; (2) charge *.803/*.009 - 15 days detention, 365 days administrative segregation, 365 loss of commutation time, and 365 days loss of phone privileges; (3) charge *.803/*.306 - 365 administrative segregation, 365 days loss of commutation time, and 30 days loss of phone privileges, consecutive to the sanctions imposed on the *.803/*.009 charge.

On appeal, appellant claims he was not provided with a timely hearing; his counsel substitute was not qualified; he should have been provided with the full confidential report prepared by the DOC; and the evidence did not support his convictions. In addressing these arguments, our scope of review is limited. We will reverse an agency's decision only when that decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999). Applying this standard, we affirm.

The New Jersey state prison special investigations division (SID) conducted an investigation between June 22, 2006 and August 1, 2006, with regard to a letter seized from an inmate that referred to inmates obtaining cell phones for use within the prison. Included in the letter were phone numbers to call to obtain a cell phone. Transcripts of the phone calls revealed that appellant, among others, was attempting to obtain a cell phone. The phone calls also revealed that appellant was attempting to have a relative purchase food for him and send it to another inmate because appellant had already received his allotted amount of food.

The charges were served on appellant on August 2, 2006. He pleaded not guilty. The initial hearing was scheduled for August 4, 2006, but was postponed on approximately eight occasions as a result of a prison lockdown, which restricted inmate movement within the institution.

The hearing was held on August 21, 2006. Appellant was provided with a counsel substitute, and given an opportunity to call and confront witnesses, but he declined. He did, however, provide a statement at his hearings. As to charge *.803/*.009, he said: "I cannot be charged with attempting to get a cell phone. I wish to go directly to the [A]ppellate [D]ivision. I filed an administrative remedy to Ms. Ricci and wish a response before we proceed." He gave a similar statement with regard to the other charges. His counsel substitute requested leniency on each charge.

After reviewing the written reports, including the confidential SID report, as well as appellant's statements, the hearing officer found that appellant had called one of the numbers in the letter that had been seized, in an attempt to obtain a cell phone as well as other contraband to be delivered to [the New Jersey State Prison]. Those transcriptions also contained specific dollar amounts as well as the mechanics of the purchase and delivery of those items to the facility.

Against this factual and procedural background, we first address appellant's claim that his counsel substitute was unqualified.

An inmate is not entitled to the full panoply of rights as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). When charged with an asterisk offense, an inmate is entitled to request a counsel substitute. N.J.A.C. 10A:4-9.12(a). When the inmate requests a counsel substitute, the prison administrator or his or her designee may appoint a staff member to provide representation. N.J.A.C. 10A:4-9.12(c).

The inmate's right to counsel is satisfied so long as the prison administrator or his or her designee chooses "a sufficiently competent staff member or inmate" to provide the inmate with assistance. Avant, supra, 67 N.J. at 529.

Here, the prison administrator appointed a member of the prison's education department as appellant's counsel substitute. Though appellant suggests that an individual with legal training should have been appointed, the regulations governing inmate disciplinary procedures do not require a counsel substitute to have any particular training or special qualifications. N.J.A.C. 10A:4-9.12. Appellant has provided no evidence, aside from his own unsupported allegations, that his counsel substitute was not "sufficiently competent" to provide him with assistance.

Next, appellant claims that the hearing was not held timely and, consequently, the charges should have been dismissed.

Although an inmate confined in prehearing detention is entitled to a hearing within three calendar days of placement in detention "unless there are exceptional circumstances, unavoidable delays or reasonable postponements," N.J.A.C. 10A:4-9.8(c), the regulations do not require that the charges be dismissed if the hearing is not timely held. That said, the postponements here were reasonable as a result of the prison lockdowns. We perceive no prejudice in the delay. Appellant's argument on this point is without merit.

Next, appellant claims he should have been provided with the confidential SID report. Again, we disagree. When a report includes confidential information, the inmate need not be provided with that report, as long as he or she is provided with a concise summary of the facts on which the hearing officer makes his or her determination. N.J.A.C. 10A:4-9.15(b)1i. Indeed, the regulations specifically preclude a hearing officer from disclosing the identity of an informant to an inmate. N.J.A.C. 10A:4-9.15(b)2. Here, appellant received a summary of the facts, and was not prejudiced by the failure of the hearing officer to provide him with the full report.

Finally, we conclude that the convictions were supported by substantial evidence in the record. Henry v. Rahway State Prison, supra, 81 N.J. at 579-80. The letter SID seized described a plan by inmates to obtain a cell phone for use within the institution. Transcripts of phone calls reveal that appellant had called one of the numbers in an attempt to obtain a cell phone. The transcripts also reveal that he was seeking to have a relative purchase food for him and send it to another inmate. The evidence was sufficient to support the charges.

Affirmed.

20080124

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