On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Tyrone Barnes, an inmate at East Jersey State Prison, appeals from a final determination of the Department of Corrections affirming an adjudication of guilt on disciplinary charge .256, failure to obey the order of a staff person, and from a sentence of fifteen days of detention, sixty days' loss of commutation time and referral to the classification committee for job review. On appeal, Barnes raises the following issues:
THE DEPARTMENT OF CORRECTIONS' FINAL AGENCY DECISION MUST BE REVERSED, DUE TO THE REPORTING OFFICER FAILING [TO] SUBSTANTIATE [THAT] APPELLANT DELIBERATELY INTENDED TO DISOBEY ORDER, THUS, LACK OF EVIDENCE SHOULD WARRANT SUMMARY DISPOSITION.*fn1
THE ADMINISTRATOR ERRED BY FAILING TO PROPERLY INVESTIGATE, RESOLVE, AND REVIEW APPELLANT['S] APPEAL SUBMITTED, THUS VIOLATIVE OF EXPRESS WRITTEN POLICY.
The record discloses that on January 31, 2007 Barnes, a commissary employee, was ordered by Senior Corrections Officer Mickens to leave that location prior to the end of his work period and to return to his cell. According to Mickens, after she gave Barnes a direct order to leave, "Inmate Barnes turned to leave and then headed back in [her] direction." She gave him a repeated direction, after which Barnes "became very agitated and told [Mickens] he was going back inside because he left something." When Barnes continued to walk toward the commissary "as though [Mickens] said nothing," she called for the area supervisor and "it wasn't until then [that] Inmate Barnes retreated to leave the area." Concluding that Barnes had refused an order and "caused a conflict," Mickens charged him with offense .256 and *.306 (conduct which disrupts or interferes with the security or orderly running of the correctional facility).*fn2 See N.J.S.A. 10A:4-4.1 (prohibited acts).
Barnes claimed that he did not intend to disobey Mickens' order, and he had no reason to do so, since such conduct would likely result in the loss of his commissary position - - the best and highest paid job in the prison facility. Barnes stated that he turned back when he realized that he had a commissary stamp in his possession, which fact, if discovered, could lead to a disciplinary charge of .210 (possession of anything not authorized for retention or receipt). Additionally, Barnes claimed that he sought to retrieve legal papers relating to a motion for reconsideration filed in connection with another disciplinary matter. According to Barnes, when he returned, Mickens "went belligerent." If Mickens "had known [he] had the commissary device, this whole ordeal wouldn't have happened."
After considering the positions of Mickens and Barnes, the hearing officer concluded that "Barnes could have complied with the order and left the stamp with staff as noted in the investigation." Additionally, the hearing officer stated: "An additional motive is legal mail he had forgotten to bring with him. He had options other than to refuse the order and there is substantial evidence of guilt." Discipline was imposed, consisting of fifteen days of detention, sixty days of lost commutation time, and referral to the classification committee for job review.
On appeal, Barnes sought reversal of the adjudication and discipline on the ground of lack of substantial evidence that he refused to obey Mickens' order to leave the commissary area. He stated that he initially complied, only turning back when he realized he had a commissary stamp and had left his legal papers. According to Barnes, Mickens "overreacted and unfairly interpreted the appellant's actions as a refusal." Barnes continued, "[h]ad she given him an opportunity to be heard, she would have known that he had a purpose for hesitating - to return an item that he was not authorized to leave the area with and retrieve his legal papers."
On appeal, Barnes' adjudication was affirmed, but his loss of commutation time was halved to thirty days. Contrary to the requirements of N.J.A.C. 10A:4-11.7(a), no ...