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Dixon v. New Jersey Dep't of Corrections

November 12, 2008

PHILLIP A. DIXON, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 29, 2008

Before Judges Rodríguez and Waugh.

Appellant Phillip A. Dixon appeals from the imposition of discipline by the New Jersey Department of Corrections (DOC) for possession of an unauthorized cassette player and cassette tape. We affirm.*fn1

Dixon is serving a life sentence, with thirty-two years and six months of parole ineligibility, in New Jersey State Prison. During a unit-wide search of cells on December 19, 2005, a Sony cassette player and a single cassette tape were found in Dixon's cell. Although the New Jersey State Prison Inmate Handbook permits inmates to possess radios, it specifically prohibits "[t]ape recorders" and "tapes."

On December 20, 2005, Dixon was charged with violation of N.J.A.C. 10A:4-4.1, specifically prison disciplinary infraction .210 ("possession of anything not authorized for retention or receipt by an inmate"). Dixon was placed in pre-hearing detention.

A disciplinary hearing was scheduled for December 21, 2005, but was adjourned due to a lockdown at the facility. On December 23, 2005, Dixon appeared before a hearing officer, but the hearing was postponed on that day and on several other occasions to permit further investigation.

The disciplinary hearing was held on January 3, 2006, before another hearing officer. At that time, Dixon was represented by an attorney substitute. He declined the opportunity to call witnesses or engage in in-person confrontation of adverse witnesses. Although the disciplinary report states that Dixon pled guilty, a closer reading of the record demonstrates that, while Dixon admitted that he had possessed the cassette player and tape, he actually pled not guilty. Dixon took the position that he was being subjected to double jeopardy because the same cassette player had previously been seized and returned to him. He also argued that it had been purchased from the prison store.

The hearing officer found Dixon guilty. The sanction imposed was confiscation of the cassette player and tape, as well as ten days detention. Dixon received credit for time spent in pre-hearing detention. Dixon appealed the determination internally. The decision was affirmed by an assistant superintendent. This appeal followed.

Dixon raises the following issues on appeal:

POINT I.

APPELLANT WAS DENIED DUE PROCESS BY BEING CHARGED WITH THE SAME OFFENSE HE WAS PREVIOUSLY ACQUITTED ...


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