On appeal from the New Jersey State Parole Board (A-4341-08T3) and the New Jersey Department of Corrections (A-5331-08T3).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Lisa and Alvarez.
Shakeel Dawud, an inmate currently incarcerated at Bayside State Prison, appeals from disciplinary sanctions imposed upon his commission of an institutional infraction. Dawud also appeals the final administrative decision of the Parole Board (Board) affirming the three-member Board Panel (Panel) determination denying him parole and imposing a twelve-month future eligibility term (FET). Finally, Dawud appeals his objective classification score (OCS), which was "8" at the time his appeal was filed, resulting in a "medium" custody status. When that score was reviewed by the Department of Corrections (DOC) in-house, a lower score subsequently issued granting him a reduced custody status of "5," "full minimum" as of July 1, 2009. For the reasons that follow, we address the imposition of disciplinary sanctions and the twelve-month FET, and dismiss as moot the appeal of the OCS.
On September 24, 2008, Hearing Officer R. Makarski found Dawud guilty of violating N.J.A.C. 10A:4-4.1(a), prohibited act.256, which makes "refusing to obey an order of any staff member" a punishable offense. The sanction imposed for the violation was referral to the classification committee for a status review of his parole date. Dawud filed an appeal to the Commissioner of the DOC, and on September 25, 2008, Assistant Superintendent James Haas upheld the adjudication and resulting sanction.
As a result of the adjudication, an administrative hold was placed on Dawud's parole date. By letter dated October 21, 2008, the Board notified Dawud that a final parole rescission hearing would be scheduled in the near future. Dawud participated in a rescission hearing on November 3, 2008, at which time a Board hearing officer recommended that Dawud's prior grant of parole be rescinded. Accordingly, on November 12, 2008, the Adult Panel adopted the decision of the hearing officer and rescinded the prior May 22, 2008 Board decision which had granted Dawud parole effective January 7, 2009. In accord with Board regulations, Dawud was issued a twelve-month FET. This appeal followed.
The charge was lodged when Dawud was residing at a halfway house. A staff member saw Dawud in possession of a cell phone and directed that he surrender it. He refused to surrender the item, which was never located. Since the time of the incident, Dawud has insisted that the object was an iPod, not a cell phone.
Dawud appeals the imposition of disciplinary sanctions on the basis that since the cell phone was never located, the State did not meet its burden of proof. He mistakes the thrust of the infraction. The adjudication was not premised on his alleged possession of a cell phone, but on his refusal to turn the item over when ordered to do so by a staff member at the halfway house. In other words, the adjudication results from his refusal to comply with a staff member's order.
Prisoners are entitled to receive written notice of the charges against them at least twenty-four hours in advance of the hearing. Avant v. Clifford, 67 N.J. 496, 525 (1975). They are guaranteed an impartial "hearing tribunal," which may consist of personnel from the Central Office staff. Id. at 525-26. They must be provided a timely hearing at which they have the opportunity to present evidence and witnesses and cross-examine adverse witnesses. Id. at 528-32. They must have access to counsel substitute. Id. at 529. They are entitled to written notification of the evidence upon which the hearing officer relied in reaching his decision and his reasons for sanctions imposed. Id. at 531-32.
All the requisite procedural safeguards were met in this case, including the assignment of counsel substitute and Dawud's presentation of his defense that he possessed an iPod and not a cell phone. Dawud entered a not guilty plea although he declined to present witnesses and declined to cross-examine or confront adverse witnesses. Adjudication sheets were presented to Dawud and his counsel substitute, and counsel substitute signed the appropriate form indicating that the information relied upon by the hearing officer accurately reflected the proofs presented during the hearing.
An adjudication of guilt of a disciplinary infraction must be supported by "substantial evidence." See Jacobs v. Stephens, 139 N.J. 212, 222 (1995). See also Avant v. Clifford, supra, 67 N.J. at 530; N.J.A.C. 10A:4-9.15(a). The proofs in this case met that standard. Dawud himself does not dispute that when directed to turn over the item in his possession, he failed to do so.
An "appellate court will reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Dawud's conduct indisputably falls within the purview of disciplinary infraction.256. Nothing in the record would cause us to disturb the hearing officer's conclusion.
Dawud claims it was error for the Board to have concluded that there was a reasonable expectation that he would violate his conditions of parole if released, due to the disciplinary infraction. His argument is that since he was not guilty, the Board cannot draw any conclusions about his ...