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Frank v. New Jersey Dep't of Corrections

November 3, 2010

CAISY FRANK, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 13, 2010

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

Caisy Frank, an inmate at Northern State Prison, appeals from a May 1, 2009 Final Agency Decision of the New Jersey Department of Corrections (DOC) finding him guilty of prohibited act.304, using abusive or obscene language to a staff member, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On April 24, 2009, Frank resided at Talbot Hall in Newark, New Jersey, an approved halfway house. In the morning, Frank was denied access to the commissary by the property clerk. Frank spoke in a loud tone and became disrespectful. He then began to leave the area before turning back and telling the clerk, he "should smack the s--- out of [him]." The property clerk immediately reported the incident. The following day Frank received notice of a charge against him for prohibited act *.005, threatening another with bodily harm or with any offense against his or her person or his or her property. N.J.A.C. 10A:4-4.1(a).

As a result, Frank was placed in pre-hearing detention and, then, transferred to Northern State Prison for four days. On April 28, 2009, he was transferred to the Central Reception and Assignment Facility. Due to this transfer, Frank's April 29, 2009, hearing was postponed. He received a disciplinary hearing on May 1, 2009. At the hearing, the prohibited act was modified from *.005 to a less severe charge,.304, using abusive or obscene language to a staff member.*fn1

At the hearing, Frank did not enter a plea to the charge against him. He requested and was granted the assistance of counsel substitute. Both Frank and counsel substitute declined the opportunity to make a statement and the opportunity to confront/cross-examine adverse witnesses, although the investigation report indicated Frank stated he was speaking to another inmate, not to a staff member. Frank was found guilty of the disciplinary infraction as amended and sanctioned with sixty days loss of commutation time. Frank administratively appealed the decision within the DOC, requesting leniency, but the decision of the hearing officer was upheld.

On appeal to this court, Frank contends:

POINT I: DURING DISCIPLINARY PROCEEDINGS, THERE WAS NOT SUBSTANTIAL EVIDENCE OF GUILT AND THE APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED.

On review, we must uphold a final agency decision unless it is arbitrary, capricious, unreasonable or unsupported by credible evidence. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The relevant standard of review is "whether the findings could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole[.]" In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotations omitted)). N.J.A.C. 10A:4-9.15(a) provides that "a finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."

We have fully considered Frank's substantive and procedural arguments and are satisfied that they lack sufficient merit to warrant a reversal in light of our limited scope of review.

To the extent Frank's appeal argues the DOC lacked sufficient evidence to find him guilty, we are satisfied there was substantial credible evidence to support the hearing officer's findings and the final decision of the DOC. The staff member immediately reported the incident and although Frank states in a letter that he was accused at random, the hearing officer accepted the staff member's version of the incident. The decision of the hearing officer was upheld by the DOC.

Frank also argues he did not sign the form which waived his right of twenty-four hours to prepare a defense to the modified charge. Pursuant to N.J.A.C. 10A:4-9.16(a), the inmate may be given a postponement ...


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