On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 1, 2010 - Decided: Before Judges Cuff and Fasciale.
Kevin Archie appeals from an October 26, 2009 order of the Department of Corrections (DOC) denying his request for leniency and upholding a hearing officer's decision that Archie engaged in a prohibited act in violation of N.J.A.C. 10A:4-41(a). We affirm.
Archie is currently an inmate at Bayside State Prison (BSP). On October 22, 2009, while Archie was receiving medical treatment at the Ancora unit of BSP, Senior Corrections Officer Dutra (Officer Dutra) discovered three keep-on-person (KOP) medication cards located in a trash can of a common area bathroom. The cards contained unused tablets. Officer Dutra seized the cards and learned that they belonged to Archie. The DOC charged Archie with violating section *.205 of N.J.A.C. 10A:4-4.1, which provides in part: (a) An inmate who commits one or more of the following numbered prohibited acts shall be subject to disciplinary action and a sanction that is imposed by a Disciplinary Hearing Officer or Adjustment Committee with the exception of those violations disposed of by way of an on-the-spot correction[:] *.205 misuse of authorized medication.
On October 23, 2009, the DOC notified Archie of the disciplinary charge. Archie did not provide a statement or request that witnesses be interviewed during the investigation.
On October 26, 2009, a hearing officer conducted a hearing and Archie used the assistance of substitute counsel. Archie called no witnesses, declined to cross-examine witnesses, pled not guilty, and stated:
I was trying to do this right thing. I only been here less [than] 30 days [and] this proceeding [is] different from Bayside. When I took my noon pills back to my room I realized [that] I was over my limit and I didn't want to get in trouble so I put them in the trash. I didn't know you had to turn in your old medication.
Archie requested leniency and suggested that the charge be modified from *.205 to .709, failure to comply with a written rule or regulation of the prison facility. That day, the hearing officer found Archie guilty and stated:
[Archie] pled not guilty, but is found guilty. The charge indicates that [Archie] put his pills in the trash where policy require[s] that they be returned to medical. [Archie] admitted that he put the pills in the trash.
[Archie] needs to rethink the importance of all things drug related in a jail. DHO considered changing [the] charge to 709 but 205 misuse of meds is more appropriate.
Leniency granted for [Archie's] record.
The hearing officer sanctioned Archie to ten days detention with credit for time served, sixty days loss of commutation time, a suspended ninety day period of administrative segregation, and referral for custody status review.
Archie appealed from the hearing officer's decision and requested leniency. Archie raised no other arguments in his appeal to the DOC, apologized for his bad judgment, and was remorseful. The next day the DOC upheld the ...