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Palmer v. Dep't of Corrections

October 8, 2010

PHILLIP PALMER, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 20, 2010

Before Judges R.B. Coleman and C.L. Miniman.

Appellant Phillip Palmer (Palmer), an inmate at Northern State Prison, appeals from final agency action of the Department of Corrections finding him guilty of prohibited act *.009, possession of electronic equipment not authorized for retention, and *.202, possession of a weapon in violation of N.J.A.C. 10A:4-4.1(a). We now affirm in part and remand in part.

On January 12, 2009, Senior Corrections Officer Sgt. J. Cusano (Cusano) conducted a search of Palmer's cell and found a cell phone and a thirteen-and-one-half inch sharpened weapon in the cell's light fixture. Palmer and his cellmate denied any knowledge of these items. Both were charged with disciplinary infractions *.009 and *.202. The charges were served on Palmer on January 14, 2009. The inmate pled not guilty and stated "no statement." The charges were found to have merit and were referred to "headquarters" for further action at that time. Substitute counsel was requested.

On January 16, 2009, Cusano prepared a special report regarding the incident in which he recorded that the light cover was removed using the security bit located "in Center" and that Lt. Mark Tully (Tully) was present in the unit at the time of the search, although not involved in it. The reason for the search was a tip "received from the area lieutenant specifically stating that a cellular phone was hidden in the light fixture in [Palmer's cell]." He further indicated that he had no information pertaining to maintenance or repairs in the cell and that he took no photographs of the light fixture or the area at the time the items were found. The disciplinary hearings scheduled for January 15 and January 20, 2009, were postponed to obtain further information. On January 21, 2009, Tully prepared a memo to Sgt. Carlos Perez informing him that the information he received about Palmer and his cellmate "was obtained from a confidential informant that I have utilized on numerous occasions. This informant[']s information was and has always been very specific, with a[n] 85% to 90% accuracy rate." On January 22, 2009, the date on which the hearing was to proceed, Palmer's paralegal requested a polygraph test on his behalf, expressing that Palmer felt that such a test was the only way to prove that he had no knowledge of the weapon or the cell phone. That request was transmitted the following day to Administrator L. Glover, who denied the request on January 23, 2009.

The Courtline hearing was held on January 26, 2009. The hearing officer granted Palmer's request for the assistance of counsel substitute, and Palmer pled not guilty to both charges. At the hearing, counsel substitute presented defendant's written statement. Defendant asserted in his statement that he did not become involved in the type of conduct with which he was charged; he had been charge-free for forty-two months; and he had been on the wing for thirty-five months without incident. He asserted that he had too much to lose to have things like that in his cell, specifically, 2344 days of "comp time for starters."

He stated S.I.D. asked him if he felt he was set up and he said that he did. He pointed out that this happened after he witnessed a corrections officer "doing something that isn't acceptable in this institution." He asserted that Cusano entered his cell with his hands in his coat and asked him and his cellmate to step out. He further indicated that Cusano and Tully had a great deal of difficulty in trying to force open the light and had to take a break from their efforts before returning to their task. Palmer heard them talking, and then they came out and handcuffed him and his cellmate. He stated that Cusano walked around with a shank in his inside pocket, only pulling it out at "Medical." He asked the hearing officer to look at the weapon because it was not something that is easily found on the compound. Palmer stated that he asked Cusano to fingerprint the weapon and to pull up the cell log on the phone. He asked the hearing officer to "pull the Administrator for this" so he could have a fair chance to fight the charges.

With respect to the *.009 charge, the hearing officer indicated on the adjudication-of-disciplinary-charge form that Palmer stated that "he don't get involved in things like that. I have had eighteen cellies. I don't watch them. Leniency. It's not mine." He also noted that Palmer's paralegal requested leniency because the items were not Palmer's. The hearing officer considered Palmer's written statement and his request for a polygraph. The officer then made the following findings:

Inmate pleaded not guilty. Inmate stated the items found were not his. Both cellmate Palmer & Jimenez denied the contraband. Inmate Palmer has been in his cell since 2006 (according to computer data)[.] All inmates are responsible for their property & living quarters. Based on reports this charge is upheld. Inmates did not want to [sic] a confrontation and did not ask for witness statements from each other, or anyone else. Charge upheld[.]

Having found Palmer guilty of the charge, the hearing officer imposed the following sanctions: fifteen days detention; 365 days of administrative segregation; 365 days loss of commutation time; 185 days loss of telephone privileges; and fifteen days loss of recreation privileges. The hearing officer expressed that the sanctions were necessary because the charges "fall under the zero tolerance policy." He also noted that cell phones are not permitted in the institution and that neither inmate claimed responsibility.

With respect to the *.202 charge, the hearing officer found as follows:

Inmate pleaded not guilty. Inmate stated the items were not his. The weapon was found in the cell that Palmer has occupied since 2006. All inmates are responsible for their property & living quarters. Based on reports this charge is upheld[. T]he weapon found was over 12" long. The blade was sharpen[ed] & ...


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