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Paschall v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 2, 2009

ALTRICE PASCHALL, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2009

Before Judges Parrillo and Messano.

Appellant Altrice Paschall, an inmate currently incarcerated at Northern State Prison, appeals from a final agency decision of the Department of Corrections (DOC) adjudicating him guilty of prohibited act *.803/*.009, attempted misuse of possession of electronic equipment not authorized for use or retention by an inmate such as, but not limited to, a cellular telephone/two-way radio, in violation of N.J.A.C. 10A:4-4.1(a), and imposing disciplinary sanctions upon him. We affirm.

A Special Investigation Division (SID) review of inmate Tony Dingle's outgoing telephone calls to his girlfriend, Rosie Lizano, revealed that on September 28, 2007, Dingle engaged Lizano to call individuals about a pick-up of certain items from Paschall's contact. Paschall participated in this three-way phone conversation, identifying himself by his nickname, "Trice." Paschall was also identified by a Senior Corrections Officer (SCO), who listened to a tape recording of the three-way phone conversation, and, in fact, Paschall admitted he spoke with Dingle and his girlfriend during that call. Three-way phone calls are prohibited due to institutional safety and security concerns.

Consequently, Paschall was charged with the instant prohibited act of misusing electronic equipment, as well as prohibited act *.803/*.215, attempting to obtain a controlled dangerous substance (CDS). Although the latter was dismissed, Paschall was adjudicated guilty of the former after a hearing before an impartial tribunal in which he was provided the assistance of counsel substitute and the opportunity to present witnesses on his own behalf as well as confront adverse witnesses, both of which he declined. Paschall received sanctions of fifteen days of detention with credit for time served, 365 days of administrative segregation, and 365 days loss of commutation time. He administratively appealed, and the DOC affirmed the guilty finding and resulting sanctions.

On appeal here, Paschall contends that among other procedural irregularities, he was not given a hearing within 72 hours pursuant to N.J.A.C. 10A:4-9.8(c). We are satisfied, however, that appellant received all the process that was due. Avant v. Clifford, 67 N.J. 496, 522 (1975). The delay in conducting the hearing was due to SID's ongoing investigation and actually inured to Paschall's benefit since, having secured the taped conversation, he was absolved of the other charge against him concerning his alleged attempt at obtaining a CDS. We are further satisfied that there is substantial credible evidence of Paschall's guilt and that the DOC's decision that Paschall misused electronic equipment is neither arbitrary nor unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).

Affirmed.

20090202

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