January 25, 2011
GEORGE ALSTON, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 IRREGULARITIES IN THE PENALTIES THAT WERE IMPOSED.
We agree with Alston that permanent loss of contact visit is not an authorized sanction for prohibited act *.002. N.J.A.C. 10A:4-5.1(c). Therefore, that sanction is vacated. The remaining arguments relevant to the claimed "irregularities in penalties" are rejected. They are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
Alston also contends:
PROHIBITED ACT *.306, CONDUCT WHICH DISRUPTS OR INTERFERES WITH THE SECURITY OR ORDERLY RUNNING OF THE CORRECTIONAL FACILITY, HAS NO DEFINITION. IT IS ARBITRARILY APPLIED AND ITS VAGUENESS MAKES IT UNCONSTITUTIONAL. DURING CONFRONTATION, DESPITE INCONSISTENCIES IN THE OFFICER'S VERSION OF THE ASSAULT, THE HEARING OFFICER LIMITED THE APPELLANT'S ABILITY TO DO CROSS EXAMINATION.
We are not persuaded and affirm because they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We also note that, to some extent, these arguments are challenges to the fact-finding by the DOC. When error in a fact-finding of an administrative agency is alleged, the scope of appellate review is limited. We will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. We give "due regard" to the ability of the fact finder to judge credibility. In re Taylor, 158 N.J. 644, 656-58 (1999); State v. Locurto, 157 N.J. 463, 470-71 (1999). It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." Locurto, supra, at 471. And where the fact finder has made credibility determinations, even without specifically articulating detailed findings of credibility, where the reasons for the determination may be inferred from the record, the Appellate Division is not free to make its own credibility determination. Id. at 472-75.
Here, from our careful review of the record, we conclude that the decision by the DOC is supported by sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). We simply note that prohibition act *.306 is self-explanatory. Alston's assault on Lutz caused her to push the panic button. Other officers performing other duties had to respond. Therefore, there was ample evidence that Alston's conduct disrupted the smooth running of the correctional facility.
The sanction of permanent loss of contact visits for the conviction of prohibited act *.002 is vacated. In all other respects, the disciplinary findings and sanctions are affirmed.
© 1992-2011 VersusLaw Inc.