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Blankson v. Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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] possessing a cell phone and CDS [field tested] positive for marijuana."

Appellant now raises the following contentions for our consideration:

POINT I

THE HEARING OFFICER'S DECISION WAS NOT BASED ON SUBSTANTIAL EVIDENCE AS MANDATED BY NJAC § 10A:4-9.15(a)

POINT II

THE DEPARTMENT OF CORRECTIONS['] FAILURE TO PROVIDE A LOG OF CALLS MADE OF THE ALLEGED CELLULAR PHONE IN [APPELLANT'S] POSSESSION, AND THE SIMULTANEOUS FAILURE OF THE DEPARTMENT OF CORRECTIONS TO PROVIDE ANY OF THE "ITEMS COMPRISING THE RECORD" BEFORE ADJUDICATION VIOLATE[D] [HIS] DUE PROCESS RIGHTS TO CONFRONT [HIS] ACCUSER

POINT III

THE COURT MUST ALLOW [APPELLANT] TO ADD AN ADDITIONAL ISSUE IN THE INTEREST OF JUSTICE, AS THE DEPARTMENT OF CORRECTIONS IS DENYING [HIM] ACCESS TO THE COURT, AS THEY WILL NOT ALLOW [HIM] TO HAVE ACCESS TO A TYPEWRITER CONTRARY TO THEIR OWN ESTABLISHED POLICY

Having carefully reviewed these contentions in light of the record and the controlling legal principles, we conclude they are without merit; therefore, we affirm.

We note initially that our review of an administrative agency's action is limited. Only where an agency's decision is arbitrary, capricious or unsupported by credible evidence in the record may we disturb that decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1989); In re Taylor, 158 N.J. 644, 657 (1999).

An adjudication of guilt in an inmate disciplinary proceeding must be supported by "substantial evidence" that the inmate committed a prohibited act. N.J.A.C. 10A:4-9.15(a). We will "not substitute our independent judgment for that of the . . . agency where its findings are supported by substantial evidence, i.e., such evidence as a reasonable mind might accept as adequate to support a conclusion." Mead Johnson & Co. v. S. Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967).

We are satisfied that such substantial evidence exists in this record. Both Kerner's report and his responses to appellant's "confrontational questions" unequivocally established his direct observation of appellant retrieving the contraband from his person and discarding the items in the utility closet.

Appellant argues that the hearing officer ignored circumstances showing that Kerner "attempted to extort [him] for information, and when [he] was unwilling to be an informant, [Kerner] charged [him] for contraband found in a common area, . . . in the hopes that [he] would become an informant to avoid the consequences of the false charges . . . ." Appellant contends that he outlined these allegations in his closing statement but that the hearing officer rendered his decision prior to receiving his statement. The record reflects, however, that the hearing officer received a fax transmittal of statements by appellant and by his counsel substitute on July 10, 2008, and addressed some of the contentions in those statements by an addendum to his "adjudication of disciplinary charge[s]" which he completed in July 14, 2008. Thus, it appears the hearing officer had the benefit of appellant's version of events at the time he rendered his decision. In any event, the record provides no support for appellant's contention in this regard.

Appellant contends that he was wrongfully denied the right to submit to a polygraph examination. We note that such requests are within the discretion of the prison administrator and will only be granted when a matter presents a credibility issue that cannot be determined during the disciplinary hearing. N.J.A.C. 10A:3-7.1(a). "[A]n inmate does not have an unqualified right to a polygraph test. . . . This administrative code section is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). We are satisfied that, under the circumstances, the prison administrator's denial of appellant's request for a polygraph examination did not constitute an abuse of discretion. Id. at 24.

Regarding appellant's contention that Kerner "set him up" for his failure to cooperate as an informant, we note that none of the inmates' statements appellant submitted to the hearing officer corroborated this scenario to any degree.

Appellant's argument that the DOC failed to provide "a log of calls" made on the retrieved cell phone, and that this failure somehow rendered the decision arbitrary and capricious, is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). Kerner clearly observed appellant remove the cell phone from his pants and toss it into the utility closet. We are satisfied that this sufficiently established appellant's "possession" of the cell phone for the purpose of the disciplinary infraction.

We similarly reject as without merit appellant's contention that he was prejudiced by not having any of the "items comprising the record" before his adjudication. In light of the "confrontation questions" appellant presented to Kerner, as well as to another officer, Hanrahan, it appears that appellant was clearly in possession of the information presented to the hearing officer. Appellant's "confrontation questions" are specific and relate directly to the allegations in Kerner's report.

Finally, appellant raises a new argument regarding the denial of access to a typewriter. R. 2:5-1(f)(3)(A) requires a notice of appeal to "designate the judgment, decision, action or rule, or part thereof appealed from . . . ." Appellant's notice of appeal did not "designate" any "decision, action or rule" denying him access to a typewriter. Therefore, this issue is not properly before us and we will not address it.

Affirmed.

20091005

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