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Gibbs v. Dep't of Corrections

October 3, 2008


On appeal from the Department of Corrections.

Per curiam.


Submitted September 16, 2008

Before Judges Graves and Grall.

Carnell Gibbs, an inmate at New Jersey State Prison in Trenton, appeals from an adjudication of disciplinary infractions for acts proscribed in N.J.A.C. 10A:4-4.1(a): *.803 and *.009, attempting to possess a cellular telephone; *.306, engaging in conduct that disrupts or interferes with the security or orderly running of the correctional facility; *.803 and *.215, with intent to distribute, attempting possession of prohibited substances such as drugs; .802 and .754, attempting to give or accept money or anything of value from a member of another inmate's family or another inmate's friend with intent to further an illegal or improper purpose; and *.009, possession of a cellular phone. Gibbs received the following aggregate sanctions: 30 days' detention, 1460 days' administrative segregation, 1460 days' loss of commutation time and, subject to approval of the Institutional Classification Committee, 730 days' loss of phone privileges. The Administrator denied Gibbs's administrative appeal, and he now appeals from that final order.*fn1

The charges against Gibbs were based on his possession of a cellular phone and his role in a scheme involving the smuggling of cellular phones and drugs into the prison with the assistance of a prison employee. Telephone calls made by Gibbs from the prison were monitored and recorded. Typed summaries of Gibbs's conversations were prepared and submitted to the hearing officer along with other evidence.

The summaries of the phone conversations demonstrate Gibbs's guilt. He discussed the price of the cellular phones and the drugs he sought to obtain and the amount of the fee the prison employee demanded for his assistance. Gibbs discussed a series of transactions involving friends and relatives of inmates and their roles in obtaining and transferring the money, cellular phones and drugs. Gibbs identified the inmates who would receive two of the cellular phones and said he planned to sell a third. He told one of his helpers outside the prison to purchase "minutes" for the cellular phones that were to be delivered to the prison. Gibbs communicated with others inside the prison without calling them directly by having a friend outside connect him with a third party. During one conversation, Gibbs mentioned that he no longer had the cellular phone he previously used.

Gibbs requested and received the assistance of counsel substitute. Gibbs and his counsel substitute were given the summaries of Gibbs's phone conversations prior to the hearing. Gibbs did not ask for additional time to review the summaries or hear the tapes and did not request an opportunity to present or confront any witness. When Gibbs filed an administrative appeal, he sought leniency; he did not object to the adequacy of the evidence or the fairness of the disciplinary hearing.

Gibbs seeks relief based on procedural errors he did not raise at the time of the hearing or on his administrative appeal. He argues that he was denied due process because he did not receive a timely notice of the charges against him, a timely hearing or a timely decision, and he contends that he was not afforded adequate time to review the evidence prior to the hearing. Ordinarily this court does not address issues that were not raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In this case it is apparent that the arguments lack sufficient merit to warrant more than brief comment.

R. 2:11-3(e)(1)(E).

Deviation from Department regulations that establish time frames for the various steps in prison disciplinary proceedings warrant reversal and remand only when there is a showing of prejudice. Jacobs v. Stephens, 139 N.J. 212, 219-20 (1995); see N.J.A.C. 10A:4-9.9. There is nothing in this record that would permit us to conclude that the deviations had any impact on Gibbs's ability to meet the evidence against him or present evidence in his own defense.

Gibbs also contends that the evidence is inadequate and objects to the severity of the sanctions. Those arguments require no additional discussion. R. 2:11-3(e)(1)(D), (E). The sanctions are within the permissible range for the serious infractions at issue here, see N.J.A.C. 10A:4-5.1(a), (c), (e), (g), and the "findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005); see Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (discussing review of decisions of an administrative agency).


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