On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 27, 2008
Before Judges C.L. Miniman and Lihotz.
Appellant Michael Ammean appeals from the final agency action of the Southern State Correctional Facility adjudicating him guilty of institutional infraction *.202, possession of a weapon. He asserts that the record does not contain any substantial evidence supporting this adjudication, which he seeks to have vacated. We affirm.
On April 28, 2007, at 5:10 p.m. Corrections Officer Recruit K. Maggio was performing routine bed-area searches when he "found a weapon which was a modified pen with a screw sticking out of one end. The weapon was found inside [Ammean's] locked wall locker on [the] bottom shelf under brown storage envelopes with papers in them." The investigator, Sergeant Flickinger, who interviewed three inmate witnesses, indicated in his report that inmates are responsible to keep their lockers locked. Ammean was served with the charge of institutional infraction *.202, his first disciplinary charge in almost three years, on April 29, 2007, at 4:50 p.m.
The first hearing scheduled for April 30, 2007, was adjourned at the request of Ammean's counsel substitute in order to prepare the case for the hearing. The second hearing scheduled for May 3, 2007, was adjourned to obtain a photograph of the weapon. The hearing was conducted on May 7, 2007.
Maggio testified at the hearing and various documents were marked into evidence on behalf of the institution: A1, Authorization for Pre-hearing Detention; A3, Seizure of Contraband Report; A4, Inmate Receipt, Contraband Report; A5, photocopy of weapon; A6, Special Report for Lock-up Exam; A7, Hold Slip; A8, hearing officer's request for clear copies or photographs of the weapon; and A10, two copies of weapon laid beside a ruler.
Ammean then gave the following statement:
[Y]ou can see that they are two different things but looks like 2 different weapons[.] I been down 7 years[.] I know not to have anything in locker[.] I've had GM for over a year and charge free[,] not even OTS here[.] I have no problems with anyone but[,] when I did have a problem[,] I went to officer and asked to be sep[a]rated[.] I am hoping you can see that someone threw this in my locker[.] I usually keep it locke[d. I]t only takes a second to throw something in there when I go to the shower or outside[. R]equests consider record[.
S]omeone set me up[.] I've had a couple bunkies that have never been moved off unit but they were moved away from me[. T]hat is all I can think of[.] I want to keep my status[.]
Ammean declined to call any witnesses, relying on the three witness statements obtained from Scott Finestone, Angel Vargas and Brian Quattrochi as a result of the investigation into the *.202 infraction. Those statements were marked as D1 to D3, respectively. Vargas merely wrote in his statement that he had no statement to make. Quattrochi stated that Ammean never caused any trouble and that someone must have put the weapon in his locker because he was about to go home. Finestone was more elaborate:
On 4/30/07 Ammean #433822 & myself were out in the big yard at about 6:15 p.m.
[T]he compound Sgt[.] came to the fence & called Ammean out. There was a few issues that happen earlier in the week that concerned me[,] Scott Finestone[,] that caused a few verbal arguments [sic] among myself & Ammean. My op[in]ion is that there was a "slip dropped & a shank placed in Ammean's area[.]" This also caused my area to be searched as well. I've known Ammean for 25 years before we were ever ever put in prison[.] We grew up together. If this man had a shank I would have known[.] I can't stress that statement enough! And, I am positive this was not in his area before we left for the yard. Ammean is only guilty of leaveing [sic] his locker open & letting something like this happen!!! I ...