February 18, 2010
KEVIN ALEXANDER, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Gilroy and Simonelli.
Defendant Kevin Alexander appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act .210, possession of anything not authorized for retention or receipt by an inmate or not issued to him through regular correctional facility channels, in violation of N.J.A.C. 10A:4-4.1. We affirm.
At all times relevant to this appeal, Alexander was incarcerated at Bayside State Prison. He is serving a four-year sentence for possession of a controlled dangerous substance, receiving stolen property and unlawful possession of a weapon (handgun).
On October 7, 2008, while searching Alexander's cell, Senior Correction's Officer Saboski found contraband in the form of one hot pot, which had been altered to boil water, a yellow highlighter and three pornographic magazines showing penetration. As a result, on October 8, 2008, Sergeant Kenney served the charge on Alexander, conducted an investigation and referred the charge to a hearing officer for further action.
A hearing was held on October 10, 2008, before Hearing Officer Maniscalco. At the hearing, Alexander requested and received counsel substitute, he did not request any witnesses, and declined the offer of in-person confrontation of adverse witnesses. After Alexander pled guilty to possessing the unauthorized items, he and counsel substitute requested leniency. Counsel substitute signed the adjudication of disciplinary charge form acknowledging that the information contained therein "accurately reflects what took place at the inmate disciplinary hearing."
In adjudicating Alexander guilty of the charge, Hearing Officer Maniscalco relied on several reports and Alexander's guilty plea. He sanctioned Alexander to ten days detention, ninety days administrative segregation, and sixty days loss of commutation time.
On October 10, 2008, Alexander administratively appealed. He again admitted possessing the unauthorized items and requested leniency in the form of a suspended sanction. He raised no other issues.
On October 15, 2008, Assistant Superintendent Donna Klipper modified the sanctions by suspending the ninety-day administrative segregation for sixty days. This appeal followed.
Alexander contends for the first time on appeal that: (1) his due process rights were violated because he was not present during the disciplinary hearing; (2) he never received an inmate handbook, and therefore, did not know he was violating prison regulations prohibiting possession of unauthorized items; and (3) he had a different counsel substitute for his administrative appeal who did not put forth a valid and informed appeal.
We decline to consider questions or issues not properly presented below when an opportunity for such a presentation is available, unless the questions raised on appeal concern jurisdiction or matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Even considering Alexander's contentions, we are satisfied they lack merit.
The record reveals that Alexander was at the hearing, he gave a statement, he pled guilty, and he requested leniency. His guilty plea prohibits him from raising, on appeal, any claim that he was deprived of an inmate handbook. Alexander also signed the administrative appeal, he submitted a pro se argument, and his appeal was successful.
Further, a prison disciplinary proceeding "'is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.'" Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 484, 494 (1972)). However, in such proceedings prisoners have certain procedural due process rights, including a limited right to call witnesses, present documentary evidence and to confront and cross-examine witnesses where necessary "for an adequate presentation of the evidence, particularly when serious issues of credibility are involved[.]" Id. at 529-30.
We are satisfied that Alexander was afforded all due process protections required by Avant, supra, 67 N.J. at 525-33, that Maniscalco's decision was based on substantial evidence that Alexander committed the prohibited act, and that the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); N.J.A.C. 10A:4-9.15(a).
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