February 5, 2008
TYSHON YOUNG, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Sapp-Peterson and Messano.
Tyshon Young appeals from the final administrative decision of the Department of Corrections (DOC) finding him guilty of disciplinary infractions *.002, assaulting any person, and *.306, conduct which disrupts or interferes with the orderly running of the correctional facility, in violation of N.J.A.C. 10A:4-4.1.
The record discloses that on November 22, 2006, Young was an inmate at the Albert C. Wagner Youth Correctional Facility in Bordentown. Correctional officers responded to a fight in the facility that resulted in injuries to three inmates. Because the altercation was initially suspected to be "gang-related," DOC's Special Investigations Division conducted the investigation. Based upon statements obtained from two of the victims who knew their attackers by name or nickname, and photographic identifications of some of the perpetrators, eleven inmates, including Young, were charged with disciplinary infractions. Both victims identified Young as having participated in the melee with one victim specifically claiming that Young punched and kicked him.
Young was served the next day with the charges and requested counsel substitute. The disciplinary hearing was delayed to allow DOC to continue its investigation and to allow Young to present a written defense. As part of that defense, Young furnished the names of two inmates as potential alibi witnesses. He also requested a polygraph examination. On November 30, 2006, the associate administrator of the facility denied Young's request for a polygraph, finding, "[t]here was no evidence submitted to compromise the facts of the investigation."
On December 5, 2006, the administrative hearing was conducted and Young was represented by counsel substitute. The hearing officer considered the results of the investigation and Young's defense, including the statements obtained from his alibi witnesses. One of those witnesses admitted that he slept through the entire incident; the second claimed only that the last time he saw Young he was in his bed.
Finding "no evidence/facts presented which challenges the incriminating info," the hearing officer determined there was "no credibility concerns which necessitate a polygraph exam." Based upon the investigative reports and the victims' statements and identifications, the hearing officer sustained the disciplinary charges and imposed fifteen days detention with credit for time served, three hundred and sixty-five days of administrative segregation, and the loss of three hundred and sixty-five days of commutation time on each charge, with the penalties to run consecutively.
Young filed an administrative appeal on December 5, 2006, which was denied by the administrator on December 11, 2006. He filed his notice of appeal from DOC's final determination on March 19, 2007. DOC argues that the appeal should be dismissed as untimely. "Where the appeal is untimely, the Appellate Division has no jurisdiction to decide the merits of the appeal." In re Hill, 241 N.J. Super. 361, 372 (App. Div. 1990); Calcaterra v. Calcaterra, 206 N.J. Super. 398, 402-03 (App. Div. 1988). Pursuant to Rule 2:4-1(b), Young needed to file his appeal within forty-five days of December 11, 2006, or by January 25, 2007.
Pursuant to Rule 2:4-4(a), Young could have sought an extension of time to file the appeal if he 1) demonstrated good cause for the delay; 2) demonstrated lack of prejudice to DOC; and 3) filed the notice of appeal within thirty days of January 25, or by February 24, 2007. "Th[e] thirty day extension cannot be enlarged." Hill, supra, 241 N.J. Super. at 370. "When both rules are read together, the outer limit for filing the appeal [is] [seventy-five] days." Id. at 371.
Here, Young did not file the appeal in a timely fashion, nor did he demonstrate good cause and file his appeal within the extended time provided by Rule 2:4-4(a). The cause for his delay remains unexplained. We therefore dismiss the appeal as untimely.
© 1992-2008 VersusLaw Inc.