July 18, 2008
ALBERT SNELL, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Administrative Decision of the Department of Corrections, No. 555636.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2008
Before Judges Wefing and Kestin.
Appellant appeals from a decision of the Department of Corrections imposing a penalty for failing to comply with a written rule or regulation of the correctional facility. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Appellant is serving a six-year sentence in Riverfront State Prison in Camden, New Jersey, for distributing drugs on school property, contrary to N.J.S.A. 2C:35-7, aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7), and failure to appear, contrary to N.J.S.A. 2C:29-7. On July 17, 2007, appellant placed a phone call to his sister, and, upon hearing that his brother's wife had died, asked her to place a three-way call to him. She did so. On August 9, 2007, the company that provides telephone service to the prison informed the Department of Corrections that a three-way call had been connected on July 17, 2007. Such calls are prohibited in the prison, a fact that had been communicated to the inmates by a memorandum dated May 22, 2007.
Appellant was served with a Disciplinary Report on August 14, 2007, and a disciplinary hearing was held on August 16, 2007. At the hearing, appellant pleaded guilty to having completed a three-way telephone call, and the Hearing Officer imposed sanctions of fifteen days detention, thirty days loss of phone privileges, sixty days loss of commutation time, and ninety days administrative segregation, suspended sixty days. Appellant appealed to the administrator of Riverfront State Prison on August 20, 2007, and the administrator affirmed the result of the disciplinary hearing. This appeal followed.
Our review of an administrative body's decision is limited. A decision by such a body should not be disturbed unless it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). If the reviewing court determines that sufficient credible evidence in the record supports the agency's decision, "that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999).
Appellant has admitted to having committed the prohibited act: making a three-way telephone call. His challenges to the agency's decision focus on the procedure used in the disciplinary hearing and the Department's initial review.
Appellant first argues that the delay between the event and the filing of the disciplinary report was a violation of N.J.A.C. 10A:4-9.2, which requires that a disciplinary report "be served upon the inmate within 48 hours after the violation unless there are exceptional circumstances." N.J.A.C. 10A:4-9.9 provides that "[t]he failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge," and requires the administrative body to consider the length and reason for the delay, the prejudice to the inmate, and the seriousness of the infraction. The delay was only five days beyond the point when the Department of Corrections learned of the violation, and the prejudice to appellant is minimal in light of the fact that he admitted to having violated the rule. Reviewing the record, we are confident that the prison administrator was correct in affirming the disciplinary report.
Appellant also argues that he was prohibited from confronting any witnesses at the disciplinary hearing, pursuant to N.J.A.C. 10A:4-9.14(a), which provides for "the opportunity for confrontation and cross-examination of the accuser(s) and State's witness(es), if requested." But the record of the disciplinary hearing indicates that appellant "did not name witnesses" and "did not request confrontation with a [Department of Corrections] employee." Likewise, appellant argues that he was denied a request to postpone his hearing. Again, there is nothing in the record before us that indicates that appellant requested a postponement.
Appellant's further argument that there was no clear rule forbidding three-way calling is contradicted by the text of the memo of May 22, 2007, and is without merit.
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