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Colvin v. New Jersey Dep't of Corrections

September 24, 2010

HARVEY COLVIN, APPELLANT,
v.
NEW JERSEY 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 15, 2010

Before Judges Axelrad and J. N. Harris.

Appellant Harvey Colvin, an inmate serving a fifty-year sentence under the supervision of the Department of Corrections (DOC), seeks review of the discipline imposed upon him for committing a prohibited act in East Jersey State Prison.

Specifically, the DOC found that Colvin violated N.J.A.C. 10A:4-4.1(a)(*.202) ("possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool"), and imposed appropriate sanctions upon him. Colvin asserts that not only were his due process rights as a prisoner violated, but also that he was found guilty without adequate and substantial evidence. N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."). From our review of the record and consideration of the arguments contained in the parties' briefs, we find no errors that contributed to the determination of appellant's guilt by the DOC, and we affirm.

The facts, but not the ultimate inferences derived from those facts, are not in dispute. On June 15, 2009, during a random, routine search of Colvin's double-bunk housing unit, a corrections officer "recovered [one] sharpened piece of metal with a length of approximately seven and one-half inches. This piece of metal was located inside the mattress of the top bunk." Colvin was charged with committing prohibited act *.202 and served with a Disciplinary Report on the same day as the contraband's discovery.

Colvin denied guilt. He demanded the opportunity for a polygraph examination pursuant to N.J.A.C. 10A:3-7.1(a)(1) ("[a] polygraph examination may be requested by the Administrator or designee[,] [w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge"). This request was considered by the appropriate prison authorities and denied.

Colvin does not dispute that the contraband was found in his cell and within his mattress. Nevertheless, because he claims that numerous others had access to his cell and mattress, he asserts that he "was set up, due to problems with gang members " To fortify this theory, Colvin argues that because of his status as a prison plumber, with round-the-clock access to tools and greater freedom of mobility around the prison, he had no need to conceal a sharpened piece of metal in close proximity to where he slept.

At the disciplinary hearing that followed the discovery of the contraband, the only witness to testify was Colvin. Although he was offered the opportunity to confront his accuser and to call witnesses on his own behalf, he declined to do so. Instead, as noted, he argued that there was no substantial evidence to conclude that he was in possession of the makeshift knife.

The hearing officer disagreed, finding sufficient circumstantial evidence to assign possessory rights to Colvin and rejecting Colvin's assertions of non-involvement:

Colvin was found to have a homemade weapon in his cell. He denies guilt. There is no evidence to support his claim that he was unaware of the item being in his cell. It was in an area where he had easy access to it, and inmates are responsible to monitor their cells and are responsible for the contents.

The hearing officer recommended a sanction of fifteen days detention, 240 days loss of commutation time, and 240 days in administrative segregation. Appellant filed an administrative appeal and, on June 30, 2009, Assistant Superintendent Charles E. Davis affirmed the hearing officer's decision. See N.J.A.C. 10A:4-11.5(a)(5) (as one of five ...


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