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Barnes v. Dep't of Corrections

August 21, 2009

ALBERT BARNES, APPELLANT,
v.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 August 12, 2009

Before Judges Rodríguez and LeWinn.

Appellant Albert Barnes appeals from the final agency decision of the New Jersey Department of Corrections (DOC) imposing disciplinary sanctions upon him for committing prohibited act *.202, "possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool[,]" in violation of N.J.A.C. 10A:4-4.1(a). For the reasons that follow, we affirm.

Appellant is currently incarcerated in East Jersey State Prison serving an aggregate term of twenty years with a ten-year period of parole ineligibility for his convictions on aggravated assault and related weapons offenses. On July 2, 2008, while incarcerated at South Woods State Prison (SWSP), appellant's cell was subject to a routine search by Senior Corrections Officer Brian Ambros. According to Ambros' report of that date, while doing a routine cell search of cell #2113[,] I . . . was searching the locked locker of [inmate] Barnes #549230. While searching the locker[,] I . . . shook a lotion bottle that sounded to have something inside[;] upon further inspection[,] I . . . retrieved an app[roximately] 7" sharpened spike with a white cloth tied on it for a handle inside of the bottle. At this time [the] area [sergeant] was called.

Appellant was served with a copy of the disciplinary charge the following day, and his hearing was scheduled for July 7, 2008. On that date, the hearing was adjourned due to appellant's request for a polygraph examination. In support of this request, appellant stated that he had been in his assigned cell "for approximately 18 months" during which time Ambros "searched [his] cell over 30 times." Appellant asserted that Ambros had searched his cell "[t]he day prior" to July 2, and again earlier in the day on July 2, "with negative results until the second time." He asserted that "[t]he only way to prove [his] innocence [was] via polygraph."

SWSP Administrator Karen Balicki denied appellant's polygraph request on July 7, 2008, stating that she saw "no issues of credibility that cannot be addressed by the [h]earing

[o]fficer at [the] hearing."

Appellant's hearing was then held on July 9, 2008; appellant entered a plea of not guilty and requested the assistance of a counsel substitute, which was granted. Appellant gave the following statement:

The day before they searched everything. I was missing some stuff. I went to Ambros' snitch [and] we had words. The runners were taking stuff. Ambros[] is always searching my stuff. I go home soon. Why would I do that? When I bought lotion, it was the old clear bottle. I think somebody planted that there.

Appellant was offered the opportunity both to confront adverse witnesses and to present witnesses on his on behalf; he declined both offers.

In finding appellant guilty of the disciplinary charge, the hearing officer stated:

[The inmate] vehemently denies having the weapon, but the officer's report shows it was found inside a lotion bottle inside this [inmate]'s locker. This is [inmate] Barne[s'] area of control and responsibility. Physical evidence is a spike[-]type instrument that could only be used as ...


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