On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2012
Before Judges Grall and Simonelli.
Robert Lee Terry, an inmate presently confined at New Jersey State Prison, appeals from an adjudication of disciplinary infractions for acts prohibited by N.J.A.C. 10A:4-4.1(a) - .052, making sexual proposals or threats to another and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility.
The .052 charge was based on a report filed by Senior Corrections Officer Alvarez. She asserted that at about 5:40 p.m. on December 23, 2010, Terry greeted her as they passed in the hallway of the prison and she ignored him. Terry responded, "Fuck you, I'll shove my dick in your mouth, don't ever ignore me again."
The *.306 charge was based on the report of Sergeant Bundy indicating that upon receipt of the report of the .052 charge, he and two other officers went to Terry's cell, escorted him to the prison clinic for clearance prior to admission to pre-hearing detention, conducted a strip search and placed him in a cell, all without incident.
Terry was served with notice of the infraction on December 25, 2010. The first hearing was scheduled for December 28, five days after Terry was placed in pre-hearing detention and three days after he received notice of the charges. That hearing was postponed until December 29, and the reason given was "excessive charges." On December 29, counsel substitute was assigned and the hearing was adjourned because Terry's counsel substitute exercised his right to confrontation. Questions for confrontation relating to SCO Alvarez's bias and motive for filing the .052 charge were submitted. The record indicates, however, that Terry withdrew his request to confront SCO Alvarez on January 7, the date of the final hearing.
Terry identified one witness, inmate Gaskins. Gaskins stated that the allegation was false, that the conversation was appropriate and that no sexual proposals were mentioned. According to Terry, SCO Alvarez was in the hallway and he said, "How are you doing?" She said, "Don't talk to me," and he said, "I know what you did last summer."
The hearing officer recounted the reports summarized above. Noting that staff had nothing to gain by falsifying a report, and that Gaskins had not elaborated on what was said, the hearing officer determined that the charge was substantiated and recommended fifteen days' detention, thirty days' loss of recreational privileges and ninety days' administrative segregation.
The hearing officer made no findings on the *.306 charge - conduct disrupting the security or orderly running of the correctional facility. She reduced that charge to an on the spot correction and imposed a sanction of five days' loss of recreational privileges.
Terry filed an appeal with the prison administrator, contending that SCO Alvarez made up the .052 charge because of a problem she and he had in May 2010. The appeal form lists several options for the basis of appeal, but the list does not include inadequacy of the evidence. Terry checked the entry indicating that his appeal was based on "misinterpretation of the facts."
The assistant superintendent denied his appeal on three grounds: 1) the appeal was filed on February 24, 2011 and untimely;
2) the Department's regulations and "all the safeguards therein were adhered to"; and 3) the hearing officer extended leniency in reducing the ...