NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2013.
On appeal from the New Jersey Department of Corrections.
Mark Smith, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).
Before Judges Graves and Guadagno.
Mark Smith, a State prison inmate, is serving a five-year sentence with three years of parole ineligibility for various weapon offenses. He appeals from a final agency decision of the Department of Corrections (DOC). Smith was found guilty of misusing or possessing a cell phone in violation of N.J.A.C. 10A:4-4.1(a)*.009 and sanctioned to 15 days detention, 200 days loss of commutation time, 200 days administrative segregation, and permanent loss of contact visits. Smith's administrative appeal was denied on February 10, 2012. Because Smith was not afforded his due process right to a fair hearing, we reverse and remand for a new hearing.
Smith was charged in a disciplinary report with violating prohibited act *.009, which provides as follows: "[M]isuse, 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." An electronic communication device is defined as "a device or related equipment or peripheral that is capable of electronically receiving, transmitting or storing a message, image or data" such as a telephone. N.J.A.C. 10A:1-2.2.
The disciplinary report specified:
On 01/16/2012 the Southern State Correctional Facility (SSCF) custody staff discovered a Kyocera cell phone . . . located within the SSCF secure perimeter; specifically housing unit #5. On 02/02/2012, an investigation revealed the aforementioned cell phone contained a photograph of inmate Mark Smith that was taken on 01/15/2012 while he was assigned to housing unit #5.
The disciplinary report also stated: "Additional information on file in the office of special investigation division [(SID)], " and "other facts concerning the charge" include "evidence in SSCF SID." The disciplinary report concluded that Smith "had used or was in possession of a cell phone while in unit #5." Smith plead not guilty.
Smith's initial disciplinary hearing was scheduled for February 6, 2012. However, the hearing was postponed to allow the hearing officer to obtain the "cell phone photo & report."
Following a hearing on February 8, 2012, Smith was found guilty. In paragraph 13 of her decision, the hearing officer indicated there were no "correctional facility confidential materials" and no confidential materials were withheld from Smith. In paragraph 18, the hearing officer summarized the "evidence relied on" as follows: "I/M pleads no plea a cell phone was found by security staff with[in] the SSCF perimeter. Sr. Investigator Rowley reviewed the information in the Kyocera cell phone and the cell phone contained a photo of I/M Smith."Additionally, paragraph 20 of the decision states: "Evidence ...