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Curry v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 25, 2009

AHKEEM CURRY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 1, 2009

Before Judges Messano and Alvarez.

Ahkeem Curry, a Northern State Prison inmate, appeals from the final administrative decision issued by respondent, New Jersey Department of Corrections (DOC), on April 30, 2008. The decision affirmed the adjudication but modified the sanctions imposed for disciplinary infractions .401 and .402.*fn1 We affirm.

The incident leading to the charges occurred on April 2, 2008, when Curry was housed in Bayside State Prison. He and four other inmates were observed in the prison "package area," at approximately 8:10 a.m. Inmates are excluded from the package area unless specifically authorized by the Shipping and Receiving Officer. By that hour, the inmates were already expected at their assigned work stations. In fact, they were due at their work sites by 8:00 a.m. When Sergeant Cossaboon attempted to question the inmates, all of them, including Curry, attempted to leave. Curry was charged with .401, "participating in an unauthorized meeting or gathering," and .402, "being in an unauthorized area." Id.

At the subsequent hearing conducted by Hearing Officer (HO) Ruggiero on April 28, 2008, Curry entered a guilty plea to prohibited act .402, claiming he stopped only briefly to give another inmate a light. He disputed the .401 charge, however, claiming it was based on a misperception of the officers who witnessed the incident. The HO concluded that Curry's explanation was not factually supported and that the .401 charge was sufficiently substantiated. He noted Curry's entry of the guilty plea to the .402 charge. On each offense the HO imposed fifteen days of detention, ninety days of administrative segregation, and sixty days of loss of commutation time, to be served consecutively.

Curry requested and was granted the assistance of counsel substitute, as is clear from the documents included in respondent's appendix entitled "Adjudication of Disciplinary Charge". The adjudications reflect that Curry declined both the opportunity to call witnesses on his own behalf and the chance to have the investigating officers gather statements from witnesses on his behalf. Curry also declined the opportunity to confront adverse witnesses.

In his statement of facts, Curry now claims that he was simply on his way to work when he and ten other inmates were stopped. Six men were released but he and four others were "inexplicably" charged. He raises the following points on appeal:

POINT 1

THIS DEFENDANT WASN'T GIVEN LEGAL ASSISTANCE FROM THE PARALEGALS. COUNSEL SUBSTITUTE SHALL BE PERMITTED REASONABLE TIME TO SPEAK TO THE INMATE AND SHALL BE GIVEN AT LEAST 24 HOURS TO PREPARE A DEFENSE FOR INMATE. NEVER CONDUCTED.

POINT 2

THIS DEFENDANT WAS NOT GIVEN THE RIGHT TO PARTICIPATE IN THE USE OF THE LAW LIBRARY REFERENCE MATERIALS TO ASSIST THIS DEFENDANT IN RESOLVING COURT-LINE RESULTS IN A SUITABLE REQUIRED NEED.

POINT 3

[AN] INVESTIGATION WAS NEVER THOROUGHLY MADE (CONDUCTED) PROFESSIONALLY BY INVESTIGATING STAFF WITHIN 48 HOURS OF THE TIME THE DISCIPLINARY REPORT WAS SERVED UPON THIS DEFENDANT.

POINT 4

THIS DEFENDANT['S] RIGHT TO BE TREATED RESPECTFULLY, IMPARTIALLY AND FAIR BY ALL STAFF WAS VIOLATED.

POINT 5

THIS DEFENDANT HAS THE RIGHT TO FREEDOM OF RELIGIOUS AFFILIATION AND VOLUNTARY RELIGIOUS WORSHIP WITHIN THE CORRECTIONAL FACILITY.

POINT 6

A FINDING OF GUILT AT A DISCIPLINARY HEARING SHALL BE BASED UPON SUBSTANTIAL EVIDENCE THAT THE INMATE HAS COMMITTED A PROHIBITED ACT.

POINT 7

THIS DEFENDANT REQUEST[ED] VIDEO-TAPES TO BE PRESENTED AT COURT-LINE HEARING ON BEHALF OF THIS DEFENDANT['S] INNOCENCE. COURT-LINE HEARING OFFICER, REPLIED, "THERE ARE NO VIDEO-TAPES," DENYING A LEGAL DEFENSE.

POINT 8

THIS DEFENDANT REQUESTED HEARING OFFICER REFUSED TO CHECK PROPERLY THE TIME OF CHARGE AND THIS DEFENDANT['S] JOB DETAIL WORK HOURS, TO DISCOVER THAT THIS DEFENDANT WAS HEADED TO WORK.

POINT 9

THIS DEFENDANT WAS NEVER ADVISED [] OF THE RIGHT TO REMAIN SILENT, RIGHT TO USE IMMUNITY.

POINT 10

THIS DEFENDANT['S] GUILT AT DISCIPLINARY HEARING WAS IN FACT PREDICATED SOLELY UPON THIS DEFENDANT['S] SILENCE TO NOT FALSE ACCEPT GUILTY TO A [BOGUS] #401, #402, OR #306 CHARGES.

POINT 11

DISCIPLINARY SERGEANT DID NOT THOROUGHLY INVESTIGATE THE CHARGES, INCIDENT, AS NEEDED.

POINT 12

THE DISC. HEARING OFFICER MAY DIRECT (DID NOT EXERCISE THE RESPONSIBILITY) A FURTHER INVESTIGATION. THE REPORT WAS NOT PROPERLY MADE OUT.

All of Curry's points are raised for the first time on appeal and are therefore not cognizable here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). "It is well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the [tribunal below] when an opportunity for such a presentation is available." Id. Despite being afforded the opportunity to present witnesses and to challenge the State's investigation and proofs, Curry failed to do so; his only challenge to the charges brought against him was to assert that the officer's perceptions were mistaken. Curry and his counsel-substitute were afforded the opportunity to review the adjudication summary and they acknowledged that it accurately recounted the inmate disciplinary hearing process. Curry therefore had ample opportunity to challenge the evidence against him and chose not to do so. Because none of Curry's claims raise questions of "'the jurisdiction of the trial court or concern matters of great public interest,'" they will not be considered. Id. (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

His points of contention are all post-hearing afterthoughts that are not exempt from the general prohibition.

Although the decision issued by the DOC affirming the adjudication of Curry's charges modified the sanctions imposed by making them concurrent instead of consecutive, it is "supported by substantial evidence in the record as a whole."

Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). Curry was provided with the requisite adequate due process protections in the processing and hearing of the charges against him. Avant v. Clifford, 67 N.J. 496, 523-33 (1975).

Affirmed.


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