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Ellison v. Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 19, 2008

ERIK ELLISON, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 11, 2008

Before Judges A. A. Rodríguez and Collester.

Appellant Erik Ellison is an inmate incarcerated at East Jersey State Prison in Rahway serving a ten-year sentence for first-degree robbery with a mandatory eighty-five percent prior to parole eligibility pursuant to No Early Release Act (NERA). He appeals from a decision of the Department of Corrections (DOC) adjudging him guilty of disciplinary infraction .013, unauthorized physical contact with any person, such as, but not limited to, physical contact not initiated by a staff member, volunteer or visitor, in violation of N.J.A.C. 10A:4-4.1.

The incident giving rise to the charge of disciplinary infraction occurred on November 18, 2006, in the children's area of the prison visit hall when Ellison received a visit from his young daughter and his daughter's mother. Senior Correction Officer Sorrell reported that he observed Ellison engaging in physical contact with the woman three times in the course of the visit. Sorrell reported that on the first occasion Ellison put his hand under the female's armpit and began to caress her breast. Later he caressed her buttocks and once again put his hand under her armpit to fondle her breasts. At that point, Ellison was taken from the visiting area and sent back to his prison wing. The woman was escorted out of the prison and placed on the temporarily banned list by the visit supervisor.

The following day a copy of the disciplinary charge of infraction .013 was delivered to Ellison, and the matter was referred for adjudication to Courtline. Ellison made a request for a counsel substitute, which was denied by the hearing officer. On November 27, 2006, the hearing was conducted. Ellison admitted physical contact with his visitor, although he claimed that Sorrell "misinterpreted what he saw." The hearing officer found Ellison guilty of infraction .013 and imposed sanctions of ten days detention suspended for sixty days and sixty days loss of contact visits. Ellison then filed an administrative appeal, and on December 2, 2006, the prison associate administrator upheld the determination and sanction imposed by the hearing officer. This appeal followed.

Ellison asserts the following grounds for his appeal:

POINT I -- THE APPELLANT WAS UNFAIRLY DENIED COUNSEL-SUBSTITUTE IN VIOLATION OF HIS RIGHT TO BE AFFORDED ADEQUATE REPRESENTATION.

POINT II -- PRISON OFFICIALS FAILED TO PROVIDE SUBSTANTIAL EVIDENCE THAT THE APPELLANT VIOLATED VISIT HALL RULES.

POINT III -- THE HEARING OFFICER RENDERED AN ARBITRARY AND CAPRICIOUS DECISION IN VIOLATION OF THE APPELLANT'S RIGHT TO DUE PROCESS AND FAIRNESS.

We have reviewed the record in this case and find that the DOC decision finding Ellison guilty of disciplinary infraction .013 was based on substantial credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). An adjudication of guilt of an infraction must be supported by substantial evidence, which is defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stephens, 139 N.J. 212 (1995); In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). In this case Sorrell's report and the admission by Ellison substantiates the finding of guilt. Although Ellison obviously disputes the sexual nature of the physical contact, he nonetheless admits that such contact took place. Therefore, there was more than adequate basis for the finding that he violated .013 by having his hand on the visitor in violation of the regulations.

Ellison's next argument is that he was unfairly denied counsel substitute and that had a counsel substitute been afforded to him and properly advised him, he would not have entered a guilty plea. Prisoners are entitled to certain limited protections prior to being subjected to disciplinary sanctions. The case of Avant v. Clifford, 67 N.J. 496, 522 (1975) detailed those limited rights including the following:

(6) Where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel substitute. [Id. at 529.]

Since the infraction listed as .013 is not an asterisk infraction, the applicable administrative regulations do not provide for counsel substitutes. Moreover, in this case the charges were not complex. Ellison is not illiterate and he fails to assert any persuasive ground as to an inability to prepare his defense to the charge. Accordingly, the denial of a counsel substitute was not unreasonable, and did not violate one of the limited rights affordable to inmates.

The remaining arguments put forth by Ellison are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E) and (2).

Affirmed.

20080319

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