On appeal from a Final Determination of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Cuff and Baxter.
This is an appeal from a June 15, 2007 final agency decision of the New Jersey Department of Corrections (DOC), in which DOC imposed disciplinary sanctions upon East Jersey State Prison inmate Kaseem Ali-X pursuant to N.J.A.C. 10A:4-4.1(a). The hearing officer found Ali-X guilty of committing prohibited act .013, unauthorized physical contact with a staff member. After finding Ali-X guilty of the .013 charge, the hearing officer recommended a sanction of credit for the time Ali-X served in pre-hearing detention, which amounted to eighteen days. Ali-X appealed the hearing officer's unfavorable decision to the prison Administrator, who on June 15, 2007, affirmed the guilty finding and the sanction that had been imposed by the hearing officer. We affirm.
Ali-X was accused of flinging medicine packets at a nurse in the prison pharmacy area. Nurse April Lawrence alleged that on May 24, 2007, Ali-X assaulted her by throwing his medication packets at her, hitting her in the chest. Ali-X denied that allegation and insisted that his conduct was limited to a verbal exchange. According to Ali-X, Lawrence's accusation was not credible because she did not report the incident until forty minutes had elapsed. He also maintained that Sgt. Cappozoli could not possibly have observed Nurse Lawrence picking up the medication packets from the floor, as he claimed, because a fifty-inch high wall separated the two.
On appeal, Ali-X argues that the final agency decision should be reversed because: 1) his due process rights were violated when DOC failed to adjudicate the charge within a reasonable time; and 2) the agency decision was not supported by substantial credible evidence in the record.
We turn first to Ali-X's contention that the adjudicatory hearing was unreasonably delayed. The record reflects that the hearing was initially scheduled for May 29, 2007, which was five days after the May 24, 2007 incident allegedly occurred. The five-day interval was attributable to the intervening Memorial Day weekend. On May 29, 2007, the hearing began but was continued until May 31, 2007, in order to afford DOC the opportunity to obtain a further statement from Sgt. Cappozoli. The hearing resumed on May 31, 2007, and was again continued because Ali-X requested a postponement to determine if he wanted confrontation of the DOC witnesses. The hearing re-commenced on June 11, 2007 and concluded that day. At the hearings, Ali-X did not call any witnesses or cross-examine any of the adverse witnesses. At his request, DOC provided a counsel substitute.
We conclude the time that elapsed between the alleged event and the final hearing, eighteen days, was not unreasonably long nor was it a denial of Ali-X's due process rights. The reasons for that delay are legitimate, and were caused, at least in part, by Ali-X's own request for an adjournment to consider whether he wished to confront the adverse witnesses. As N.J.A.C. 10A:4-9.9 provides, delay alone does not mandate dismissal of the charge. Here, where the delays were reasonable and did not interfere with Ali-X's ability to prepare a defense, the eighteen-day period that elapsed does not warrant dismissal of the charge. We therefore reject the claim Ali-X advances in Point I.
In Point II, Ali-X argues that the evidence did not support the charge of unauthorized physical contact with a staff member. The facts are largely uncontested. The issue is whether Ali-X merely pushed the packets away from him or did so in a manner that caused the packets to come into physical contact with the nurse. Our scope of review is a narrow one, and Ali-X's contentions are reviewed in accordance with that standard. We must affirm unless the agency's decision was arbitrary, unreasonable, unsupported by credible evidence in the record or contrary to law. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
Here, contrary to Ali-X's arguments, we are satisfied that the finding that he engaged in unauthorized physical contact with Nurse Lawrence is supported by substantial credible evidence in the record. The hearing officer reviewed the disciplinary report, the written statement provided by Sgt. Cappozoli, an Operation report as well as the written statement from Nurse Lawrence herself. The hearing officer also considered Ali-X's acknowledgment that he did engage in a ...