On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010
Before Judges Rodriguez and Grall.
Appellant George Alston challenges the August 21, 2009 decision of the Department of Correction (DOC), imposing disciplinary sanctions upon him for committing prohibited acts *.002, assaulting any person; *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility; and .256, refusing to obey an order of any staff member, N.J.A.C. 10A:4-4.1(a). On the *.002 conviction, Hearing Officer Makarski imposed 15 days detention; 365 days administrative segregation; 365 days loss of commutation time; permanent loss of contact visits; and 30 days loss of recreation privileges. On the *.306 conviction, Makarski imposed 15 days detention; 365 days administrative segregation; 365 days loss of commutation time; and 30 days loss of recreational privileges. On the .256 charge, Makarski imposed thirty days loss of recreational privileges. The sanctions imposed on *.602 and .256 are to run concurrent with each other. However, the sanctions on *.306 are to run consecutive to the other two sentences.
Alston appealed the hearing officer's decision. Assistant Superintendent Dean Campbell upheld the guilty finding and the sanctions on all charges. This constituted a final agency determination. We affirm, but modify the disposition order.
On July 26, 2009, Alston was an inmate housed at the Albert C. Wagner Youth Correctional Facility. At 1:40 p.m. that day, Senior Corrections Officer D. Lutz was on duty. She saw Alston peeking out of the window of a door in "F-Pod" in 1-wing. This occurred after the F-Pod count had been taken. Lutz ordered Alston to move away from the door.
Then inmate Jason Wong peeked out of the same window. Lutz walked into F-Pod. She saw Alston push an object underneath a blanket on bed #168. Alston sat on the bed. Lutz ordered Alston to get up from the bed and leave F-Pod. Alston refused. Lutz repeated the order. Once again, Alston refused to comply.
Lutz called Senior Corrections Officer Searles. She again ordered Alston to exit F-Pod. Alston stood up from the bed and grabbed the blanket. A small black cell phone fell from the blanket to the floor. Alston picked up the cell phone. He turned towards Lutz, pushed her out of the way and ran to the toilet area. He flushed the cell phone down the toilet.
Lutz hit the "panic" button for assistance. Lutz and Searles escorted Alston off F-Pod. Additional officers arrived at F-Pod and conducted a search. These officers were diverted from their regular assignments. The response to and search of F-Pod resulted in a delay in taking the count for the other pods in 1-wing, and all other facility evening movements.
Alston was charged with committing the three prohibited acts mentioned before. The next day, the charges were served on Alston. A DOC senior officer conducted an investigation and referred the charges to a hearing officer. Alston pleaded not guilty and requested counsel substitute. This request was granted. After a series of delays, Hearing Officer Makarski began the proceedings. Counsel substitute sought additional time to prepare; confrontation with Lutz; and a polygraph.
After hearing the testimony of Lutz and Alston, Makarski found Alston guilty of all three charges, and imposed the following sanctions.
On appeal, Alston contends:
THE SANCTIONS IMPOSED AGAINST THE APPELLANT WERE NOT AMONG THE OPTIONS CITED IN THE ADMINISTRATIVE CODE AND THERE WERE OTHER ...