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Jack Benny Jones, Jr v. New Jersey Department of Corrections

June 15, 2012

JACK BENNY JONES, JR., 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 June 5, 2012

Before Judges Reisner and Hayden.

Jack Benny Jones, while an inmate at Bayside State Prison (BSP), was found guilty of a disciplinary infraction for committing prohibited act *.202, possession of a weapon in violation of N.J.A.C. 10A:4-4.1(a). He appeals the decision and sanction imposed by the Department of Corrections (DOC). Having thoroughly considered the record before us, we affirm.

The record reveals that on May 28, 2011, the prison nurse on duty at the BSP Medical Center found a note stating that the inmates in D-unit were sharpening shanks and hiding them in lockers. During a search of the D-unit, Senior Correction Officer (SCO) Perez found an open razor blade attached to an ink pen taped to the lining of Jones' footlocker. The officers photographed and confiscated the instrument, charged Jones with disciplinary infraction *.202, possession of a weapon, such as, but not limited to, a sharpened instrument, and placed him in pre-hearing detention. The search also disclosed an incendiary device in another cell and a sharpened instrument in the common area.

The hearing, originally scheduled for May 31, 2011, was postponed to allow Jones time to request a polygraph and on the adjourned date, June 2, 2011, the hearing was again adjourned for the same reason. The polygraph request was denied and the hearing was rescheduled for June 3 but was postponed for the hearing officer to get a statement from the Special Investigations Division (SID) about an investigation concerning another inmate. After SID provided a brief statement, the hearing was held and completed on June 6, 2011.

At the first scheduled hearing, Hearing Officer MoralesPitre presided. At all subsequent hearings, Hearing Officer DiBennedetto presided. Both hearing officers were members of the DOC central office staff.

At Jones' request, he was provided with the assistance of a counsel substitute. At the hearing Jones made a statement denying that he ever had a razor, arguing that he had never had a weapons charge and did not shave. His counsel substitute argued that Jones had been set up because he had been interviewed by SID concerning another inmate the week before the search and did not provide the requested information. The counsel substitute also contended that someone had told Jones that an officer said he had put the shank in Jones' locker. Jones was given the opportunity, but declined, to confront the witnesses against him. Jones produced the statement of his cellmate who stated that Jones never had a razor.

In a written report, Hearing Officer DiBenedetto found Jones guilty, based upon Perez's written report of the search, the photo of the contraband, and Jones' failure to produce evidence that he was set up by an unnamed corrections officer, and imposed disciplinary sanctions. On June 6, 2011, Jones filed an administrative appeal. On June 9, 2011, the Assistant Superintendent upheld the hearing officer's decision and denied Jones' request for leniency. This appeal followed.

On appeal, Jones raises the following contentions.

POINT ONE - THE INVESTIGATOR AND HEARING OFFICER FAILED TO PROPERLY INVESTIGATE THE CHARGES IN VIOLATION OF THE PLAINTIFF'S CONSTITUTIONAL RIGHTS.

POINT TWO - APPELLANT WAS ENTITLED TO A POLYGRAPH EXAMINATION.

POINT THREE - THE H[EARING] O[FFICER] RELIED ON INSUFFICIENT EVIDENCE TO ...


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