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Gibbs v. Dep't of Corrections

August 6, 2010

CARNELL GIBBS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 March 23, 2010

Before Judges Messano and LeWinn.

Appellant Carnell Gibbs appeals from the February 13, 2008 final agency decision of the Department of Corrections (Department) upholding the hearing officer's decision finding him guilty of the following infractions: *.352, "counterfeiting, forging or unauthorized reproduction or use of any classification document, court document, . . . or any other official document"; and .603, "possession of gambling paraphernalia[,]" in violation of N.J.A.C. 10A:4-4.1(a). He was sanctioned fifteen days' detention (with credit for time served); ninety days' administrative segregation, sixty days' loss of commutation; and confiscation of his word processor and floppy disks which he had maintained in his cell. We affirm.

An investigative report dated February 1, 2008, stated that appellant "did possess gambling paraphernalia that was stored on a floppy disk found in [his] word processor." Another investigatory report on that same date stated that appellant "did use his word processor and electronic media to create, maintain and store documents and templates that pose a severe risk to institutional security." Both reports are signed by Sergeant R. Dolce.

Appellant was assigned counsel substitute at his hearing which occurred on February 5, 2008. Regarding the *.352 infraction, the hearing officer relied on Dolce's report stating that appellant was in possession of two 3.5-inch floppy disks "that contained several official Departmental documents and gambling paraphernalia . . . found in the inmate's property along with his word processor." The hearing officer also relied upon documents downloaded from those disks, and noted that one disk "contains gambling paraphernalia as well as other unrelated letters[,]" and another "contains 10 pages of official

[D]epartmental documents including personnel records from staff and policy directives."

The hearing officer acknowledged appellant's argument "that his word processor could not have generated those documents[,]" but stated that he had "reviewed the disks and their content[,] . . . [and] noted that the word processor . . . does ha[ve] the ability to print the contents of the disks." The hearing officer further noted that "papers generated from the disk contained several official Departmental documents" such as "letters of counseling for staff at NJSP and directives from supervisors at NJSP."

Regarding the .603 charge, the hearing officer noted that one of the floppy disks confiscated from appellant's cell "was capable of . . . saving the contents of [another disk] which contained the gambling paraphernalia[,]" and the saved disk "contained . . . terms and language consistent with gambling paraphernalia."

The adjudication sheet indicates that appellant was offered, but declined, "in-person confrontation . . . [of] adverse witnesses."

Appellant appealed to the prison administrator. His counsel substitute prepared the appeal documents and argued that the evidence was insufficient to sustain the charges; appellant's word processor could not "generate[]" the documents in issue; and appellant was "framed . . . ."

On February 13, 2008, Assistant Superintendent James Drumm issued a decision upholding the hearing officer's determinations, citing the following reasons:

The evidence presented clearly substantiates the charge as written. There was substantial credible evidence provided. The [a]ppellant claims that the evidence found on the computer disks could not be created on his word processor. The [h]earing [o]fficer's summary noted, however, that the information from the disks could be printed off of the [a]ppellant's word processor. How they were put on the disk is immaterial to the fact that ...


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