On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges A. A. Rodríguez and Payne.
Michael D'Alessandro appeals from disciplinary sanctions imposed upon him for violation of *.153, stealing, as the result of his alleged theft of a hymnal on June 30, 2007. See N.J.A.C. 10A:4-4.1. He was initially sanctioned with five days of detention and sixty days' loss of commutation time. However, in light of D'Alessandro's record of no disciplinary infractions for the past three years, following an administrative appeal, the sixty-day loss of commutation time was suspended for sixty days, leaving only the five days of detention.
On appeal, D'Alessandro makes the following arguments:
APPELLANT WAS DENIED DUE PROCESS OF LAW UNDER BOTH THE STATE AND FEDERAL CONSTITUTION WHEN
A. THE DISCIPLINARY HEARING OFFICER REFUSED TO REVIEW EXCULPATORY EVIDENCE.
B. WHEN ON ADMINISTRATIVE APPEAL, THE REVIEWING ASSISTANT ADMINISTRATOR, REFUSED TO REVIEW EXCULPATORY EVIDENCE.
C. WHEN, NOTWITHSTANDING NUMEROUS WRITTEN REQUESTS, COUNSEL FOR RESPONDENT REFUSED TO PROVIDE EXCULPATORY DOCUMENTARY EVIDENCE, FOR REVIEW IN THIS APPEAL.
The record reflects that, on June 30, 2007, D'Alessandro was observed by Unit Officer Goncharov leaving a congregate area for a fire drill carrying a hymnal under his shirt. Goncharov called Officer Buscemi and requested that he stop D'Alessandro as he entered the unit. Buscemi did so, confiscated the hymnal, and sent to D'Alessandro to his cell. D'Alessandro was then charged and taken to detention. An investigation of the incident was undertaken. In that connection, D'Alessandro requested no witnesses and reserved any statement for the courtline hearing. Thereafter, a hearing was held in the matter, at which D'Alessandro was represented by counsel substitute. At that hearing, D'Alessandro stated that he had filed a written request to borrow a hymnal but had not been given one. During the fire drill, he mentioned that fact to an inmate chaplaincy worker, who told D'Alessandro to take the book, which he did.
On appeal, D'Alessandro alleges that he requested the presence of the inmate at his hearing who had told him to take the book so that he could provide exculpatory evidence. The records of the disciplinary proceedings do not reflect such a request. They do reflect testimony by D'Alessandro conveying the substance of his present contention that he was authorized by a fellow inmate to take the book. That testimony, we find, does not absolve D'Alessandro of guilt.
D'Alessandro also argues that the prison should have produced the Form IRSF 101 that he states he submitted to the Chaplaincy Department requesting the hymnal, arguing that it would provide documentary exculpatory evidence. However, the Department of Corrections contends that, in connection with a motion for remand made by D'Alessandro, we required that it investigate whether a request had in fact been made. According to the Department, no request was found in its records. In ...