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Clarence E. Scott v. Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 28, 2011

CLARENCE E. SCOTT, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 2010

Before Judges Rodriguez and Grall.

Appellant Clarence E. Scott is an inmate at the New Jersey State Prison in Trenton (Trenton SP). On appeal, Scott challenges a final agency decision of the Department of Corrections (DOC), affirming the disciplinary sanctions imposed for the following prohibited acts in violation of N.J.A.C. 10A:4-4.1(a): *.009, possession of an electronic communication device; *.010, participating in an activity related to a security threat group; and *.751, giving a prisoner officer a bribe. Scott's sanctions are 30 days' detention, 15 days each for the *.009 and *.010 infractions and 1095 days' loss of commutation credits, 365 days for each of the three infractions. In addition, Scott was referred to the Classification Committee for 1095 days' administrative segregation, 365 days for each infraction; 1095 days' loss of phone privileges, 365 days for each infraction; and permanent loss of contact visits. With the exception of the permanent loss of contact visits, we affirm.

The charges against Scott are based on evidence gathered by the DOC's monitoring of inmates' phone calls and an investigation that followed. Scott, also known as Killer Bee, is a leader of the '93 Gangsters Blood gang as well as the '93 Hillside Beehive Blood gang. In April 2008, an inmate at the Northern State Prison in Newark (Northern SP) made a phone call to a woman who was not incarcerated. The inmate wanted to speak to Scott. At the inmate's request, the woman placed a third-party phone call to Scott at Trenton SP and connected them. They discussed the hierarchy of their gang members who were claiming that Scott was no longer in charge. Scott directed the other inmate to assault those who were not following Scott's instructions.

The DOC determined that the cell phone used by Scott was registered to a prepaid cellular telephone. With the assistance of others not incarcerated, Scott had paid $500 to Brian C.

Teel, a Trenton SP staff member, to deliver that phone. Consequently, Teel was arrested and admitted participating in a complicated scheme that led to Scott's acquisition of the cellular phone. The cell phone itself was not found.

Scott attempted to exculpate himself on the ground that the DOC had "no physical evidence of a cell phone" and had "already [given him] a year for a charger."

On that evidence, Scott was charged with the infractions set forth above. He initially pled not guilty and requested counsel substitute. The hearing officer granted this request. After counsel substitute was assigned, Scott declined to offer any witnesses and pled guilty. He requested leniency and asked if he "could get phone privileges back soon."

The hearing officer reviewed Scott's disciplinary, investigation, and adjudication reports, as well as numerous DOC Special Investigation reports. Finding Scott guilty of three disciplinary infractions, the hearing officer imposed sanctions. On administrative appeal, Assistant Superintendent Christopher Holmes upheld the guilty finding and sanctions in a final agency decision.

On appeal, Scott argues:

THE APPELLANT SUBMITS THAT THE ERRONEOUS ADVICE GIVEN BY COUNSEL SUBSTITUTE TO PLEAD GUILTY TO THE SANCTIONS IMPOSED LEAD TO CHARGES WHICH SHOULD HAVE BEEN REDUCED BY THE HEARING OFFICER AND THAT BECAUSE OF THE ERRONEOUS ADVICE OF PLEADING GUILTY TO THE *.009 MISUSE OF ELECTRONIC DEVISE WITHOUT CHALLENGING THE FACTS LEAD TO EXTENSIVE SANCTIONS AND SHOULD THUS BE CORRECTED AS ARGUED UNDER THE FOLLOWING SUB-POINTS BELOW THAT COUNSEL SUBSTITUTE WAS INEFFECTIVE FOR FAILING TO PROVIDE ADEQUATE REPRESENTATION.

A. The Charge Of *.009 Should Have Been Downgraded To An Offense Of A .210 For Possession Of Something Not Authorized For Retention Or Receipt Because A "Cell Phone Charger" Does Not Fit The Definition As Described For A *.009 And Failure Of Counsel Substitute To Not Argue The Facts And Merits Is Ineffective And Prejudicial To The Appellant And His Defense To Adequately Address The Merits On The Record Prior To Adjudication Which Lead To Negative Results.

B. The Appellant Submits Also That There Is No Such Permanent Loss Of Contact Visits And Thus Should Not Be Made A Part Of The Record Thus Counsel Substitute Was Ineffective For Failing To Raise This Issue At The Administrative Level And Before The Hearing Officer For Final Adjudication.

C. The Appellant's Prison Phone Privileges Should Be Reinstated Because [The DOC] Has Failed To Show That There Was A Violation Of The *.009 Prohibited Act.

With one exception, we reject these arguments.

The scope of our review of the final determination of a State agency, such as the DOC, is limited. Moore v. Dep't of Corrs., 335 N.J. Super. 103, 110 (App. Div. 2000). Our careful review of the record on appeal; the arguments of the parties; and the applicable law satisfies us that Scott's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Moreover, sufficient credible evidence in the record supports the DOC decision. R. 2:11-3(e)(1)(D).

Our review has also included examination of the process and procedures afforded to Scott. We conclude that these procedures appropriately insured the protection of those rights generally accorded to prison inmates as determined by law. McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Avant v. Clifford, 67 N.J. 496, 525-46 (1975). Moreover, the sanctions are not arbitrary, capricious or unreasonable. Moore, supra, 335 N.J. Super. at 110.

Assuming that deficient performance of counsel substitute could warrant relief, we are confident that counsel substitute's performance was "sufficiently competent." Avant, supra, 67 N.J. at 529. There was no valid basis for reduction of the *.009 charge, possession of an electronic communication device, to the less serious .210 charge, possession of something unauthorized. The evidence establishing Scott's guilt of the *.009 infraction was his intercepted cell phone conversations. Without doubt, evidence of his use of a cell phone established that he was in possession of a cell phone.

We conclude that the sanction of permanent loss of contact visits must be vacated. The sanction is available only for designated infractions enumerated in N.J.A.C. 10A:4-5.1(c). The list does not include *.009, *.010 or *.751.

Affirmed as modified.

20110128

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