On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 3, 2011 -- Decided:
Before Judges Grall and C.L. Miniman.
Appellant Caleb Love appeals from a September 18, 2009, final administrative decision of the Department of Corrections finding him guilty of disciplinary infraction .703, "correspondence or conduct with a visitor" in violation of N.J.A.C. 10A:4-4.1. We affirm.
Love is an inmate at South Woods State Prison and is serving a mandatory maximum term of three years for one count of unlawful possession of handguns. On September 13, 2009, at 10:30 in the morning, Senior Corrections Officer J. Thompson and Sergeant M. Sheppard were observing Love on camera in the visitor area. They saw Love take his right hand and reach into his visitor's waistband area, retrieve something, and place it in his mouth. This occurred during the termination of visits. The officers confronted Love and escorted him to an area where they conducted a strip search for contraband. When they asked what kind of drugs he had retrieved, he denied getting anything. They did not discover any contraband or drugs. He was escorted to his cell, searched again, and ordered to submit to testing for a prohibited substance. Love complied, and the test was negative. His cell was searched without results. On September 14, 2009, he was hand-delivered disciplinary charge .703; the charge was written by Thompson. Investigating Sergeant M. Ewing read Love's rights to him; Love pled not guilty to the infraction and made no statement to Ewing.
Love's first hearing was scheduled for September 15, 2009, but it was postponed because Love was in a dry cell and because the hearing officer wanted to secure the videotape for the hearing. Love requested the assistance of counsel and was assigned an inmate paralegal as counsel substitute.
On September 16, 2009, the disciplinary hearing was conducted. Love testified that he "did nothing wrong[, j]ust playing with my son [and] eating [Skittles]." Counsel substitute stated that inmates are permitted to hug and kiss at the end of a visit and that no contraband was found. Love declined witnesses and relied on the videotape.
The hearing officer found Love guilty of the infraction charged. He noted that, in viewing the videotape, he observed an inappropriate kiss and touching prior to the visit termination. He found that Love's playing with his son was superficial and that Love reached with his right hand into the waistband area of his visitor, moved his hand back and forth, and then promptly placed his hand to his mouth, appearing to ingest something. The hearing officer did not see any Skittles. He also found Love's credibility compromised and the charge substantiated. The hearing officer explained that the visitor area is a vulnerable area where contraband is known to be introduced during visits, that strict adherence to all visit policies is required, and that Love violated visit policies.
Counsel substitute filed an appeal with the Assistant Superintendent on September 16, 2009. In that appeal, he raised a number of issues: (1) insufficient evidence to find Love guilty; (2) inmates are allowed to hug and kiss at the end of a visit pursuant to prison visitation rules; (3) a plea of leniency; and (4) a request that the Assistant Administrator review the videotape. He urged that a review of the videotape would demonstrate that Love could not reach into his visitor's waistband because it was covered by the visitor's tee shirt, his urine test was clean, no contraband was found on his person, and his cell search was clean.
On September 18, 2009, the Assistant Superintendent found that the evidence supported the finding of guilty and that the charge was appropriate based on Love's conduct; the sanctions imposed were upheld.
Love raises the following issues on appeal:
POINT I -- APART FROM FEDERAL AND STATE CONSTITUTION PROTECTIONS[,] THE DISCIPLINARY HEARING OFFICER IS "DUTY BOUND TO INSURE [SIC] THAT ADMINISTRATION PROCEEDINGS ARE CONDUCTED IN ACCORDANCE WITH COMMON NOTIONS OF FUNDAMENTAL FAIRNESS.["]
POINT [II] -- HEARING OFFICER'S PERCEPTION IS NOT CREDIBLE DUE TO THE FACT THE HEARING OFFICER VIOLATED INMATE[']S RIGHTS BY NOT ADHERING TO THE ...