On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Harris and Koblitz.
Appellant Otis F. Blunt appeals from a final disciplinary disposition of the Department of Corrections (the Department) that found him guilty of committing prohibited act *.102, attempting or planning an escape, in violation of N.J.A.C. 10A:4-4.1(a)(*.102). We affirm.
On July 22, 2010, Blunt was an inmate housed at the East Jersey State Prison in Rahway.*fn1 On that date, he and another inmate were observed by a senior corrections officer engaged in a conversation. Blunt was seen sketching a diagram in the sand with a stick and at the same time pointing out to the other inmate the location and geometry of nearby buildings and a wall. His suspicions aroused, the corrections officer stepped to within fifteen feet of the inmates and heard Blunt explain how to break off a piece of metal from his cell, fashion it into a tool, and then use it to cut mortar to free parts of bricks from the cell wall.
After the incident was reported to superior officers, Blunt was served with disciplinary charges, accusing him of prohibited act *.102. He was immediately transferred to the New Jersey State Prison in Trenton for adjudication. The first hearing date was scheduled for July 26, 2010, but that date, along with several others, was postponed into September 2010 to facilitate requests for counsel substitute,*fn2 a polygraph examination,*fn3 copies of photographs and a video recording of the prison yard,*fn4 and confrontation questions. Blunt pled not guilty to the charges.
At the hearing, Blunt was granted a generous opportunity to pose numerous questions. The hearing officer found that Blunt's accuser "completed the confrontation [without] any hesitation." The other inmate offered a statement indicating that his discussion with Blunt merely involved a sketch for an arm tattoo.
Blunt presented a statement containing seven separately-numbered "Reasons Why It Makes No Sense." Among other things, he argued that the corrections officer misunderstood the context of his conversation. Alternatively, Blunt hinted that the corrections officer was dishonest when he indicated that he actually overheard the contents of the inmates' conversation. Blunt contended that the yard was "crowded with inmates talking, yelling, arguing, or whatever" and "[t]his would mean that [Blunt] had to be 'yelling' these plans." Blunt further suggested that he would never have committed the prohibited act, especially since he was so close to his release eligibility date. He urged that he would not have jeopardized his expected release into the community by such conduct.
The hearing officer considered all of the available evidence and concluded as follows:
Based on reports and confrontation (which offered the inmates extensive leniency in questioning length) this charge is upheld. The [corrections officer] had no reservations about what he heard [and] the inmates did not ask the [corrections officer] if he was unable to hear what went on. The [corrections officer] state the inmates positioned themselves in a manner which allowed him to clearly identify what was going on. Based on all issues and requests being addressed this charge is upheld.
Sanctions of ten days detention, 365 days of administrative segregation, 365 days loss of commutation time, and thirty-five days loss of recreational privileges were imposed.
Blunt filed an administrative appeal with prison officials, which argued that the adjudication was against the weight of the evidence. He also claimed that the charges should be dismissed due to (1) the failure to preserve "video footage," which "would have clearly shown the incident from start to finish. It would have shown that [the] inmates . . . [were] only discussing a skull drawing and that the charging officer could not have heard their conversation;" (2) the transfer to New Jersey State Prison, which "hampered [the] ability to effectively present a full defense; and (3) "the length of the delay (over forty days) in adjudicating these charges[, which] is a violation of due process under [N.J.A.C.] 10A:4-9.7, 10A:4-9.8." The Assistant Administrator of East Jersey State Prison upheld the hearing officer's determinations, explaining:
Based upon a review of the documents submitted in this matter, this writer finds no violation of standards nor a misinterpretation of the facts ...