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Blankson v. Dep't of Corrections

October 5, 2009

ALVIN BLANKSON, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 15, 2009

Before Judges Wefing and LeWinn.

Appellant, Alvin Blankson, appeals from the July 30, 2008 final administrative decision of the Department of Corrections (DOC) affirming a hearing officer's decision finding him guilty of violating *.203, possession of prohibited substances (marijuana), and *.009, misuse or possession of an electronic communication device (cell phone), and imposing the following sanctions: fifteen days in detention; 365 days in administrative segregation; 365 days loss of commutation time; 365 days of urine monitoring; 365 days loss of contact visits; and 365 days loss of telephone privileges.

The primary evidence against appellant was the report of Sgt. B. Kerner, dated June 5, 2008, stating that on that date at approximately 9:00 p.m., Kerner observed appellant waiting to be strip frisked upon his return from the prison gymnasium to his dormitory. Kerner stated that he "clearly observed [appellant] throwing a small bag of suspected C.D.S[.] (marijuana) and a cell phone into a utility closet, behind where he was sitting. The items were recovered by [Officer] Dasher."

Although Kerner did not personally testify at the hearing, appellant was afforded the opportunity to submit "confrontation questions" to him prior to the hearing. In response to those questions, Kerner reiterated the observations in his report, adding that he was approximately six to eight feet away from appellant at the time. When asked how he could be certain that appellant "threw any items into the closet[,]" Kerner responded that he "saw [appellant] do this." When asked to describe the "angle" at which he observed appellant, Kerner responded that he was "parallel[,]" adding that appellant "was the only person there."

In response to other "confrontation questions," Kerner acknowledged that the utility closet in which the contraband was discovered was a "common area," but stated that the closet had been "searched prior [to this incident]. There was no contraband at that time."

Kerner's additional responses to appellant's "confrontation questions" elicited the information that the officer saw appellant "retrieve" the contraband "out of his pants. There was a residue of feces on [the] phone." Kerner indicated that he was able to ascertain that the items appellant threw into the utility closet were contraband, because "they were identified where they were discovered."

Appellant also asked Kerner: "How is it possible for [him] to have undergone 2 searches . . . by trained officers, both of which [disclosed] no contraband . . . on his person, but yet [he could] allegedly possess and throw contraband into the closet area?" Kerner responded the "pat frisk[s] are not considered thorough searches. There is a greater chance of contr[aband] on strip searches."

At the disciplinary hearing on July 3, 2008, appellant produced the statements of three inmates who had allegedly witnessed the incident. Appellant was also represented by counsel substitute. None of the inmates' statements contradicted Kerner's report and responses to appellant's "confrontational questions."

The hearing officer also reviewed numerous other documents, including photographs of the cell phone retrieved from the utility closet, a "seizure of contraband" report describing the cell phone and a "bag of possible C.D.S." and a narcotic field test form noting that the suspected CDS tested positive for marijuana on June 17, 2008.

In his decision, the hearing officer noted that "Sgt. Kerner . . . [wa]s regarded as credible. He answered each of [appellant's] questions in a professional and complete manner. . . . Sgt. Kerner clearly detailed positive identification and observation of [appellant] ...


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