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Smith Fonrose v. New Jersey Department of Corrections

May 18, 2012

SMITH FONROSE, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2012

Before Judges Grall and Alvarez.

In this prison disciplinary matter, Smith Fonrose, a state inmate, appeals from a final New Jersey Department of Correction (DOC) administrative decision issued April 27, 2011. Fonrose was adjudicated guilty of disciplinary infractions *.001, killing; *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility; and *.010, participating in an activity related to a security threat group. See N.J.A.C. 10A:4-4.1. We affirm.

On the *.001 adjudication, Hearing Officer Oszvart*fn1 imposed sanctions of fifteen days detention with credit for time served, 365 days administrative segregation, and 365 days loss of commutation credits. A sanction of fifteen days detention with credit for time served, 365 days administrative segregation, and 365 days loss of commutation time, consecutive to the sanctions for the *.001 charge, was imposed on the *.306 charge. On *.010, Fonrose was sentenced to credit for time served, 365 days administrative segregation, and 365 days loss of commutation time, consecutive to the *.001 and *.306 charges.

On April 7, 2011, Fonrose administratively appealed the initial decision made by Oszvart. On April 27, 2011, Associate Administrator Sherry Jones affirmed the adjudication and sanctions.

Fonrose was one of five inmates who, on August 23, 2010, kicked and punched to death another inmate, Carl Epps. The criminal investigation was referred to the Hunterdon County Prosecutor's Office as required by N.J.A.C. 10A:4-4.2. DOC's Special Investigations Division conducted an investigation into the homicide. On March 3, 2011, DOC Investigator Brian Bonomo reported that Fonrose and the other inmates were gang members.

Immediately following the incident, Fonrose was transferred to New Jersey State Prison where he claims he was placed in a "dry cell," which is one lacking running water or a toilet, for approximately three months. See N.J.A.C. 10A:3-5.8(e). Thereafter in November 2010, he alleges he was transferred to the Management Control Unit (MCU). See N.J.A.C. 10A:5-7.1(d)(5).

On March 4, 2011, DOC Sergeant Infante served the disciplinary charges on Fonrose, conducted an investigation, and referred the charges to a hearing officer. The hearing began on March 7, 2011, but was postponed because Fonrose was not available, having left the institution to attend court proceedings. The following day, the hearing was again postponed pending the receipt of additional material from the Hunterdon County Prosecutor's Office. On March 10, 2011, the hearing was postponed a third time so Oszvart could view the area in the Mountainview facility cottage where the incident took place. The hearings were subsequently continued on four different dates in March because additional information was provided to the DOC by the county prosecutor's office.

On March 28, 2011, DOC Senior Investigator Wayne Robbins issued a report concluding, after review of the transcripts of statements made by Fonrose and two others taken by the Hunterdon County Prosecutor's Office, that Fonrose and the other inmates conspired to assault Epps as part of a gang, or security threat group (STG).

On March 29, 2011, when the hearing was reconvened, Fonrose and his counsel substitute reviewed the evidence and requested an additional twenty-four hours in which to prepare, which request was granted. On March 31, 2011, counsel substitute submitted an exhibit and the hearing was postponed so that the hearing officer could review the information.

Thereafter, on April 4, 2011, the hearing on the *.001 and *.306 charges concluded. On April 7, 2011, the hearing on the *.010 charge concluded and ...


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