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Re'voal v. New Jersey Dep't of Corrections

September 24, 2010

ERIK RE'VOAL, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Administrative Decision of the Department of Corrections.

The opinion of the court was delivered by: Per Curium

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2010

Before Judges Coleman and Lihotz.

Inmate Erik Re'Voal, who is currently incarcerated in New Jersey State Prison (NJSP), appeals from a final agency action of the Department of Corrections (DOC), upholding a hearing officer's finding that he committed prohibited acts *.009, misuse of computer related equipment and *.306, conduct which disrupts institutional security in violation of N.J.A.C. 10A:4-4.1(a). On appeal, Re'Voal argues the determination was against the weight of the evidence and challenges the procedures employed by the hearing officer as violative of his due process rights. After consideration of these arguments, in light of the record and the applicable law, we affirm.

The following facts are taken from the administrative record. On January 29, 2009, Re'Voal was served with notice that he had possessed "unauthorized computer media, namely, computer disks that would allow for the manipulation of departmental computer systems" prohibited by *.009. An extensive investigation, supervised by Senior Investigator R. Dolce, SID, NJSP, revealed that Re'Voal and other inmates in the prison education department's Donald Bourne School had possessed seventy-one disks. Forty disks were labeled with Re'Voal's name, including copies of original systems disks found in a satchel also identified with his name. Dolce noted that "[a] number of these disks [allowed] for [the] reconfigur[ation of] State computers."

A second notice charged Re'Voal with offense *.306, stating he had engaged in inappropriate conduct evincing "undue familiarity" with Quianna Means-Davis, a civilian teaching assistant in the Donald Bourne School at NJSP, by providing her with several cards and notes containing personal and romantic overtones, "facilitating the employee[']s corruption."

The adjudicatory hearing commenced on February 2, 2009. Re'Voal and his counsel substitute appeared via court-line and entered a plea of not guilty to both charges. Thereafter, the matter was twice postponed to allow defendant additional time to review the evidence and obtain witness reports. Two additional adjournments were requested by Re'Voal or his counsel substitute. Specifically, on February 9, issues were presented to the hearing officer, including a request to review all videotaped interviews conducted during the investigation and the original investigation report. Re'Voal also requested witness statements from three staff members. Later, on February 11, defendant submitted confrontation questions to be presented to the witnesses. The matter was continued to February 18, 2009.

Prior to the next scheduled hearing date, the hearing officer reviewed and considered Dolce's seventy-five page confidential investigation report, which included interviews with numerous staff members and inmates. The report encompassed investigation of multiple infractions resulting in charges against numerous inmates. The hearing officer determined disclosure of the entirety of the report to Re'Voal was unnecessary because the documents contained "crucial and highly sensitive statements [that] could jeopardize [the safety of] both the involved inmates as well as involved civilian staff of the [NJSP]." He denied defendant's request for release of the report. In its place, he prepared a written synopsis of the evidence implicating Re'Voal, which was marked into evidence.

On February 20, Dolce and Ms. Deniece Gray, NJSP's Assistant Supervisor of Education, appeared and responded to written questions prepared by Re'Voal and posed by the hearing officer. The hearing officer recorded all replies, then allowed follow-up questions and responses. Re'Voal was not present during this process.

Additionally, written statements that had been requested from staff members were marked into evidence. Gray affirmed Re'Voal was given educational disks for his college courses and that "all disks were kept secured in the school area[.]" Ismail Haitama, a teacher in the college correspondence studies program, explained Re'Voal's educational materials were kept in Room 207. However, the inmate worked as a clerk for another school staff member, who "retained his audio equipment, CD's and disks in Room 209/208." Instructor Christopher Bound stated he was unaware of disks used by Re'Voal, as he was not his supervisor.

Appearing on February 20, 2009, Re'Voal presented a written statement in his defense. He first requested dismissal of the *.009 charge, asserting he never possessed the computer media as the compact disks were "kept under lock and key in the D.B. School," so that a staff member must allow access and use. He stated he was enrolled in the college courses and any disks identified with his name contained authorized school related course work. Re'Voal was also employed in the education department to maintain the computerized student activity roster, therefore, he was permitted to use the department's computers and make one back-up copy of materials.

Re'Voal also challenged the hearing officer's refusal to release Dolce's report and videotape interviews, contending that decision made it impossible to defend the charges. He accused the hearing officer of relating the report's contents in a biased manner so as to support the charges. Further, he argued the delay in charging him with the alleged offenses, following their actual discovery on November 2008, violated his rights of due process.

Regarding the *.306 charge, Re'Voal maintained he did not receive any written rule or policy prohibiting an inmate from signing a get well card for a civilian staff member. Re'Voal asserted the card in question was not given to Means-Davis but another staff member, long before she was employed by NJSP. ...


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