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Coleman v. New Jersey Dep't of Corrections

October 9, 2009

COREY COLEMAN, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 16, 2009

Before Judges Sapp-Peterson and Espinosa.

Appellant inmate Coleman appeals from the adjudication of two disciplinary charges against him, escape *.101, and assault *.002, as set forth in N.J.A.C. 10A:4-4.1(a).

Appellant was incarcerated at the Center for Urban Education ("CUE"), a halfway house in Irvington. On August 4, 2008, he was found to be missing during a head count taken at 12:04 a.m. After he was declared an escapee, he was observed climbing back into the facility through a window at 1:05 a.m. Ten minutes later, he was observed leaving through a second floor bathroom window. CUE personnel alerted an Irvington police officer and pointed out appellant. He refused to stop in response to the officer's commands, kicked the officer's K9 partner several times and pushed the officer who tried to arrest him in an attempt to escape. The officer had to use force to subdue him and effect the arrest. Appellant was treated at a hospital, released and taken to Irvington Police Department. He was returned to the custody of the Department of Corrections ("DOC") on August 7, 2008.

The *.002 charge was served upon him on August 8, 2008. The *.101 charge was initially served on August 4, 2008, and then re-served upon him on August 11, 2008, after he was returned to custody. Both charges were referred to a hearing officer for further action.

Appellant was provided with a counsel substitute. He chose not to confront adverse witnesses or to call witnesses on his behalf but did put on a defense. He provided the following statement:

I did not escape. I was out of place. I didn't go out of the building until 1:10 a.m. I called her to come pick up my money because they said I was going back. I had money orders. Went out the front door. I went down the street. On my way back the officer pulled up.

Appellant was shown the adjudication reports and the evidence relied upon by the hearing officer. The Adjudication of Disciplinary Charge form reflects that the non-confidential evidence relied upon included statements and reports of the CUE Resident Supervisors and a four page escape report as well as a two page police report. The Adjudication also reflects the acknowledgment of appellant's counsel substitute that the information recorded on the form accurately reflected what took place at the disciplinary hearing.

The hearing officer found appellant guilty on both charges. Appellant was sanctioned to fifteen days detention, loss of commutation time for 180 days, and administrative segregation for 180 days, which was suspended for sixty days on the *.101 escape charge. He was sanctioned to a consecutive fifteen days detention, 365 days loss of commutation time and 365 days administrative segregation on the *.002 assault charge.

Appellant filed an administrative appeal from that decision. In his appeal, he stated, "I ran into a little trouble on August 4th and I was wrong for being outside the facility but never assaulted anyone." The Assistant Superintendent upheld the hearing officer's decision. Appellant appeals from that final decision and raises the following issue on appeal:

POINT I

PETITIONER'S STATE AND CONSITUTIONAL RIGHTS TO MINIMAL PROCEDURAL DUE PROCESS UNDER THE FOURTEENTH AND SEVENTH ADMENDMENT OF LAW AND ADMINISTRATIVE FAIRNESS WERE VIOLATED WHICH ARE PLAIN ERROR TO THE FINDINGS OF GUILT IN COLEMAN'S DISCIPLINARY SANCTION, ...


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