January 8, 2009
STEVEN MCKENZIE, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2008
Before Judges Skillman and Grall.
Steven McKenzie, an inmate at New Jersey State Prison in Trenton, appeals from an adjudication of disciplinary infractions for acts prohibited by N.J.A.C. 10A:4-4.1(a). He was charged with *.009, possession of an unauthorized cellular phone and charger, and *.306, engaging in conduct that disrupts or interferes with the security or orderly running of the correctional facility. At McKenzie's request, counsel substitute was appointed. McKenzie did not ask to present or confront any witness, however. Instead, he entered a plea of guilty to both charges, and his counsel substitute argued for leniency and merger of the charges.
After reviewing the documentary evidence and considering McKenzie's admission of guilt, the hearing officer found that McKenzie committed both prohibited acts and recommended the following sanctions: for the *.009 charge, 15 days' detention, 365 days' loss of commutation time, 365 days' administrative segregation, 365 days' loss of phone privileges and permanent loss of contact visits; for the *.306 charge, 15 days' detention, 180 days' loss of commutation time and 180 days' administrative segregation.
McKenzie filed a disciplinary appeal in which he argued that "because the two disciplinary charges arose out of one single episode and there was no code called or disruption of the movement" the sanctions imposed should be merged. The administrator concluded that the sanctions imposed were appropriate given the serious nature of the infractions, the disruption of "institutional operations" and McKenzie's "disciplinary history."
The facts were not disputed. Captain Moleins ordered McKenzie to leave his cell, but he did not obey the order. Instead, he attempted to flush a cellular phone and its charger down the toilet. Captain Moleins called for assistance, and the guards managed to retrieve the contraband, handcuff McKenzie and escort him to pre-hearing detention. Officers who were summoned to help were taken away from other tasks.
On this appeal McKenzie raises one issue. Claiming that sanctions imposed for prohibited acts *.009 and *.306 are generally merged or concurrent, he contends that "[t]he decision of the hearing officer to impose consecutive sanctions in this matter violates [his] right to equal protection."
Courts should intervene when arbitrary and capricious action by prison officials results in "unwarranted loss of privileges or the imposition of unduly harsh" sanctions. Avant v. Clifford, 67 N.J. 496, 533 (1975). But when the punishment is within the range authorized by the Department's regulations, courts generally defer to the exercise of discretion by those who are responsible for maintaining order in our prisons. See Negron v. N.J. Dep't. of Corr., 220 N.J. Super. 425, 431 (App. Div. 1987). The consecutive sanctions imposed for McKenzie's prohibited acts are within the authorized range. See N.J.A.C. 10A:4-5.1(a), (e); N.J.A.C. 10A:4-5.3 (imposing limitations on consecutive sanctions not implicated in this case).
McKenzie's claim of disparity ignores the fact that neither Department regulations nor judicial decisions require the same sanction for every violation of the same regulation. Negron, supra, 220 N.J. Super. at 430; N.J.A.C. 10A:4-9.17(a). In imposing sanctions for prohibited acts, the circumstances surrounding individual cases and the needs of the offending inmate must be considered. Negron, supra, 220 N.J. Super. at 430; N.J.A.C. 10A:4-9.17(a). Differences in the underlying conduct and the disciplinary records of the inmates involved justify differences in punishment. See State v. Roach, 146 N.J. 208, 232-33 (1996); N.J.A.C. 10A:4-9.17(a). Disparity is a concern only when it is unjustified. Roach, supra, 146 N.J. at 232-33.
McKenzie has not provided any information that would permit us to compare his conduct with the conduct of the inmates who allegedly received more lenient punishments when found guilty of the same prohibited acts.*fn1 He simply asserts that when separate charges are based on a "single incident" prison officials generally merge the charges or impose concurrent sanctions.
McKenzie's charges were not based on a "single incident." This episode had two distinct components. McKenzie possessed the cellular phone and charger, and he made an attempt to dispose of the contraband that required a special response. The guard had to call for assistance. The Assistant Superintendent concluded that McKenzie "clearly disrupted institutional operations" by these actions. It is apparent that McKenzie's attempt to dispose of the contraband placed a demand on the staff and operation of the institution that would not have been experienced if he had complied with the guard's order.
The Assistant Superintendent who upheld the sanctions also relied, in part, on McKenzie's disciplinary record. That record does not support his plea for leniency. It includes several similar prohibited acts - for example, possession of banned substances and refusal to obey orders. Any valid comparison of McKenzie's sanctions with those received by other inmates would require consideration of McKenzie's history of non-compliance with prison regulations. N.J.A.C. 10A:4-9.17(a).
The record leaves us with no reason to entertain any suspicion that McKenzie's sanctions are unjustifiably severe when compared with sanctions received by other inmates in similar circumstances. The sanctions are within the permissible range, and the reasons given for imposition of consecutive punishments "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).