NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 9, 2013
On appeal from the New Jersey Department of Corrections.
Jeffrey Hicks, appellant pro tie.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Pugilism, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).
Before Judges Ostrer and Hayden.
Jeffrey Hicks, an inmate at Wayside State Prison, appeals from a final determination of the Department of Corrections (Department) that he possessed an electronic communication device — specifically, an LG wall charger — in violation of *.009, as set forth in N.J.A.C. 10A:4-4.1. The hearing officer imposed 15 days of detention, 180 days of administrative segregation, 180 days lost commutation time, and permanent loss of contact visits. An assistant superintendent thereafter upheld the decision of the hearing officer.
On appeal, Hicks argues: (1) there was insufficient evidence to establish that he possessed the device; and (2) the wall charger is not an "electronic communication device" as defined by DOC regulations. We agree and reverse.
The charges arose from a routine search of the cottage-room that Hicks occupied with three other inmates. The preliminary incident report indicates that each inmate was assigned a "bed area." The search, conducted on February 17, 2012, uncovered an "LG U.S.B. cord for an LG cell phone and an altered razor with the safety guard removed concealed in a wall locker assigned to inmate [Jami] Shaker, " one of Hicks's roommates. An officer found the LG charger in the area assigned to another roommate. The incident report states, "Compound Patrol Officer Green searched bed 7 and found an LG plug with U.S.B. connection on the T.V. stand next to the T.V. Bed 7 is assigned to inmate [Andre] Williams[.]" No other contraband was found in the room, including Hicks's bed area and that of the other occupant, Rodney Parks. Also, it did not indicate the discovery of a cell phone or other electronic device with which the charger or cord could be used.
The charger, as depicted in a photograph admitted into evidence at the disciplinary hearing, was cube-shaped, with prongs to insert into a standard wall electric outlet, and a slot for insertion of a USB cord. We understand such devices are typically used to convert an electric current from a wall outlet, and transmit the current through a USB cord, for the purpose of charging the battery of an electronic device, or directly powering an electronic device. There is no evidence in the record to indicate the charger was used for any other purpose.
Based on his alleged possession of the charger on the T.V. stand — but not the USB cord in the locker — the Department initially charged Hicks with violating provision .210 of the prison disciplinary code, which prohibits "possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels." N.J.A.C. 10A:4-4.1. However, the hearing officer, pursuant to N.J.A.C. 10A:4-9.16, modified the charge to allege a violation of provision *.009:
* .009 misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention (see ...