March 31, 2010
ESTE THOMAS, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2010
Before Judges Fuentes and Simonelli.
Appellant Este Thomas appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act *.101 (escape), N.J.A.C. 10A:4-4.1(a). We affirm.
Thomas is serving a seven-year term of imprisonment with a five-year period of parole ineligibility for convictions for distribution of drugs on school property and certain persons not to have weapons. At all times relevant to this appeal, Thomas was incarcerated at Hope Hall, a residential community release program, or halfway house, in Camden.
At 12:50 p.m. on February 8, 2009, Thomas signed out of Hope Hall on a pass to attend a Narcotics Anonymous meeting. He was to return by 5:00 p.m. At 1:59 p.m., he made his accountability call to verify his whereabouts. He failed to make the required 4:00 p.m. telephone call, and failed to return to Hope Hall. As a result, Hope Hall officials contacted local law enforcement and local hospitals to locate Thomas but were unsuccessful.
At 6:45 p.m., Thomas's sister reported to Hope Hall that Thomas was at Our Lady of Lourdes Hospital. Thomas later claimed that he had been hit by a bus and woke up in the hospital. However, emergency room records*fn1 do not confirm Thomas's claim. Rather, the records indicate that shortly after Thomas's arrival to the emergency room, he was alert, responsive, and in no acute distress or obvious discomfort; his heart rate, abdomen and lungs were normal; and his extremities had "good pulses, and "no swelling/tenderness . . . [or] edema." The records also indicate that Thomas's speech was "very slurred," he had a "bizarre affect," he responded "inappropriately to question[s,]" and he was so disruptive that he had to be placed in restraints.
Officers from Riverfront State Prison went to the hospital to retrieve Thomas and transport him to the prison. The officers reported that Thomas told them that he had smoked PCP and woke up in the hospital.
Thomas was served with the *.101 charge on February 9, 2009. At a hearing on February 11, 2009, Thomas requested and received counsel substitute, declined the in-person offer to confront adverse witnesses, and pled not guilty to the charge.*fn2
After reviewing the evidence, the hearing officer found Thomas guilty and imposed the following sanctions: 15 days detention; 240 days of administrative segregation; and 240 days loss of commutation time (LOCT).
Thomas administratively appealed the decision and requested leniency. On February 18, 2009, the Assistant Superintendent upheld the guilty finding, granted leniency and modified the sanctions by suspending the detention and administrative segregation for 60 days. The Administrator upheld the 240 days LOCT. This appeal followed.
On appeal, Thomas contends that the escape charge is groundless and should be dismissed on due process grounds because the hearing officer denied him the opportunity to adjourn the hearing to obtain the hospital records. This contention lacks merit.
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.
Although Thomas had a right to present documentary evidence, the record does not indicate that he requested an adjournment in order to obtain the hospital records. More importantly, those records do not support his claim that he was hit by a bus.
We are satisfied that Thomas was afforded all due process protections required by Avant, supra, 67 N.J. at 525-33, that the hearing officer's decision was based on substantial evidence that Thomas 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).