On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and C.L. Miniman.
Appellant Ibe Allah appeals from final agency action by respondent Department of Corrections (DOC) finding a violation of *.009, Misuse or Possession of Electronic Equipment Not Authorized for Use or Possession, contrary to N.J.A.C. 10A:4-4.1. We reverse and remand this matter to the DOC for further proceedings consistent with this opinion.
On July 14, 2007, a Motorola Nextel i265 cell phone was found in the air vents of Dormitories #5 and #6 in Minimum 2 Unit at Northern State Prison in Newark. Allah was housed in Dormitory #5. The concealed cell phone was turned over to the Special Investigations Division, Computer Forensics Unit, for investigation.
On August 6, 2007, at 14:19, Jeffrey Poling of the Computer Forensics Unit retrieved a photograph of Allah from the concealed cell phone and transmitted the photograph to Senior Investigator J. Raboy. The photograph depicts Allah from the top of his head to the top portion of his upper arms. The record does not reveal what information the cell phone contained respecting calls received and made, nor does it indicate whether the identity of the subscriber was investigated. The record is also silent as to whether there were any text messages to or from the phone.
Also on August 6, 2007, at 15:15, Sergeant D. Coburn saw Allah holding a cell phone while he was in his bunk in Minimum 2 West. The phone was confiscated by SCO J. Dixon. Allah was handcuffed and escorted to the ACSU holding area by Coburn and SCO A. Clark without incident or injury, which was confirmed by Nurse Catherine Ijaola. Coburn completed an Authorization for Prehearing Detention Placement at 15:40. Both Coburn and Clark prepared reports about the cell phone they saw Allah holding, but the report of Clark indicates Allah was observed doing this at 15:10 and that he and Coburn were on their way to Allah's cell to apprehend him. The report does not indicate why they were already intending to apprehend him, although it is reasonable to infer that it was in connection with the concealed cell phone. A third report was prepared by Dixon, who indicated that at 15:25 he saw Allah with a black Motorola cell phone, which he seized and turned over to Coburn. The Seizure and Contraband Report indicates that the cell phone was seized by Dixon at 15:25. Allah was charged with a *.009 offense and he pled guilty to same, allegedly in exchange for an agreement that he would receive 185 days of administrative segregation (ADSEG) and 185 days loss of commutation time (LOCT).*fn1
Based on Allah's photograph stored in the concealed cell phone, he was charged on August 7, 2007, by Raboy with another *.009 disciplinary violation occurring on or before July 14, 2007. Allah's August 7, 2007, statement recorded in the Disciplinary Report respecting the charge was "no plea, no statement." He did not request statements from any witnesses but did request a counsel-substitute. The investigator concluded that the charge had merit.
The first hearing on August 10, 2007, was postponed for review of the photograph, which was accomplished on August 14, 2007, and a report was prepared, which we reproduce in its entirety here:
The hearing officer and Courtline officer went to SID to review the data on file in regards to the cell phone charges of inmate Allah #549229.
On Tues. 8/14/07 we spoke to Inv. Raboy who showed us the evidence on record, as well as the documented log file of what items were confiscated & logged in /i.e. the phone charger, Sim cards, [?]. Both phones confiscated were logged in w/Sim cards.
Inv. Raboy informed us that the phones did not have to take pictures themselves in order to have a picture transferred to a phone. A Sims card has the capabilities of transferring numbers, texts, pictures & data from one phone to another & an inmate who was in possession of one phone could use the Sim card to transfer information to another phone.
The Adjudication of Disciplinary Charge indicates that the offense occurred on August 6, 2007, but the evidence adduced at the second hearing on August 16, 2007, also related to the charge respecting the concealed cell phone. Allah pled not guilty at the hearing respecting the concealed cell phone and was represented by counsel-substitute Stratford. The record of the hearing indicates that Allah testified as follows:
He has no knowledge of the picture being in the phone. The phone was found in an air vent. He has no knowledge of how his picture got in the phone. Inmate: ["T]hat phone is not mine. I didn't have that phone. I am not saying ...