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Ellerbe v. Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 20, 2008

JAMES ELLERBE, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2008

Before Judges Fuentes and Chambers.

Appellant James Ellerbe appeals from the disciplinary sanction imposed on him for engaging in a sexual act with another in violation of N.J.A.C. 10A:4-4.1(a) .051.

On July 14, 2007, Corrections Officer Hernandez reported that he observed Ellerbe place his hand on the inner thigh of a female visitor, sliding it under her skirt and moving it up and down near her vagina in a sexual manner. As a result, Ellerbe was charged with the prohibited act of "engaging in sexual acts with others" in violation of N.J.A.C. 10A:4-4.1(a) .051.

At the hearing, Ellerbe denied this conduct, maintaining that he had only touched the woman's knee and leg. He presented a witness, and declined an opportunity to confront the adverse witness. The hearing officer found that the prohibited act had occurred. In explaining this conclusion, the hearing officer wrote:

Officer report[ed that] he witnessed/observed this [inmate] put his hand up his visitor's skirt, [and] move it in a sexual manner. [Inmate] claims all he did was put his hand on her leg/knee. [Inmate's] witness does not support that point. Officer has no reason to fabricate the charge. No evidence to discredit the officer's report. All relied on to determine guilt.

The hearing officer imposed the sanction of 210 days loss of contact visits. On appeal to the prison administrator, the hearing officer's finding that the prohibited act occurred was affirmed. However, the sanction was reduced to 180 days loss of contact visits.

An administrative determination must be upheld unless it is "arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole. Ramirez v. Dep't. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). In inmate disciplinary proceedings, the hearing officer's findings must be supported by "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Since defendant did not request confrontation with the adverse witness, the written report of the complaining officer, even though refuted by the inmate, may be sufficient to support a finding of guilt by the hearing officer. See McDonald v. Pinchak, 139 N.J. 188, 193, 201 (1995) (holding that the written report of a corrections officer who did not testify at the disciplinary hearing was sufficient evidence to establish an inmate's guilt despite inmate's testimony to the contrary, provided the inmate did not request an opportunity to cross-examine and confront the officer). After a careful review of this record and application of this standard, we find no basis to overturn the disciplinary action taken in this case.

Affirm.

20080620

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