June 30, 2011
DANIEL DELGADO, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 23, 2011
Before Judges Fisher and Grall.
A hearing officer found Daniel Delgado, an inmate at New Jersey State Prison, guilty of committing an act proscribed in N.J.A.C. 10A:4-4.1(a) - *.009, possession of "an electronic communication device," specifically a charger for a cell phone battery. N.J.A.C. 10A:1-2.2. As a consequence, Delgado received fifteen days' detention, 365 days' administrative segregation, 365 days' loss of commutation time, thirty days' loss of recreational privilege, and 365 days' loss of phone privileges. The administrator denied Delgado's administrative appeal, and he now appeals from that final order. Because the evidence is not adequate to establish Delgado's guilt, we reverse.
On May 17, 2010, Delgado was moved from his cell on "west-6" to a medical overflow unit. The record does not disclose the reason for that transfer, but it does indicate that Delgado's belongings were taken to a "property room."
The reports presented to the hearing officer to establish Delgado's possession of contraband are dated May 20, 2010. At 12:45 p.m. on May 20, an officer filed a report stating that he "discovered a cell phone charger located inside of a Goya 8 oz. Adobo seasoning bottle while searching the property belonging to" Delgado that was in the "property" room. Although the record includes a photograph of a battery charging device next to a Goya seasoning bottle that is large enough to hold it, the officer's report does not indicate how he identified the seasoning bottle as property that belonged to Delgado. As a consequence of the officer's discovery, other officers searched Delgado's person at 1:00 p.m. on May 20, but they found no contraband.
Notice of the disciplinary charge was prepared and delivered to Delgado on May 21. An initial hearing scheduled for May 25, 2010 was adjourned at the request of Delgado's appointed substitute counsel. The defense requested documents, including the May 17 book and property inventory sheet that would identify the person who removed Delgado's property and a property room log that would describe the property removed. See N.J.A.C. 10A:1-11.6 (requiring maintenance of an inventory sheet itemizing personal property in the inmate's possession upon admission, while incarcerated and upon transfer). Those documents were not provided, and the record does not indicate that the hearing officer ever addressed the request.
The hearing was held on May 27, 2010. The inmate denied that the charger was his and said the officers had his "stuff." The inmate did not ask to present or confront any witness. On the evidence set forth above, the hearing officer found that the battery charger was with the inmate's property that was being searched in accordance with normal processing policy in the property room.
On his administrative appeal, Delgado argued that his request for documents linking him with the bottle of seasoningthat contained the charger was improperly denied and that his property was mishandled and confused with that of another inmate. The assistant superintendent rejected, as "unsubstantiated," Delgado's claim that the bottle was mishandled and improperly identified as his. The assistant superintendent did not address the denial of Delgado's request for documents linking him to the bottle that housed the electronic communications device.
Procedures in prison disciplinary hearings must be sufficient to assure that a finding of guilt is based on verified facts and accurate knowledge about the inmate's behavior. Avant v. Clifford, 67 N.J. 496, 523 (1975). In this case, some evidence linking Delgado to the bottle, and inferentially the charger it contained, was essential to proof of the charge. There was none, and because the evidence does not support the finding of guilt, we must reverse. Williams v. Department of Corrections, 330 N.J. Super. 197, 203-04 (App. Div. 2000).
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