On appeal from a Final Administrative Decision of the Department of Corrections.
Before Judges Stern, S.L. Reisner and Graves.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2005
Kevin Johnson, an inmate at East Jersey State Prison, appeals from a Final Administrative Decision of the Department of Corrections finding him guilty of"possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool," in violation of N.J.A.C. 10A:4-4.1(a)*.202. The hearing officer imposed sanctions of fifteen days detention, 180 days administrative segregation, 180 days loss of commutation time, and confiscation of the weapon. Johnson filed an administrative appeal and on February 6, 2004, Assistant Superintendent Thomas Power upheld the guilty finding and sanctions. We now reverse and remand for reconsideration in light of this opinion.
On January 29, 2004, while on duty at East Jersey State Prison, Senior Corrections Officer Valentino heard a loud"thud." He looked to his left and saw inmate Hayes walking away from inmate Nance's bed area toward Johnson's bed area. Hayes walked over to his own bed area, picked up a cigarette, and walked back down the tier. Officer Valentino then looked to his left again, and he saw Nance lying on the floor by the bathroom. Officer Valentino called for supervisory backup and when Lieutenant Cifelli arrived, he told Officer Valentino to search Johnson's bed area. Upon searching Johnson's unlocked footlocker, Officer Valentino found"a can of mackerel in a white sock tied in a knot." Based on the weapon being found in his footlocker, Johnson was charged with a disciplinary infraction.
At his disciplinary hearing on February 2, 2004, Johnson maintained he was not in his area at the time of the incident because he was"making prayer," and therefore, he had no knowledge of a weapon being in his footlocker. Counsel substitute stated that inmate Hayes admitted to putting the weapon in Johnson's unlocked footlocker, and"Johnson had no reason to believe it was there." The victim of the assault, inmate Nance, did not indicate that Johnson was involved in his assault, and five other inmates submitted letters indicating they were attending morning prayer with Johnson at or about the time of the incident.
Based on information provided by a confidential informant (CI), the hearing officer determined there was"substantial evidence that [Johnson] was involved in the assault and had knowledge of the weapon." Paragraph 18 of the adjudication form, entitled"Summary of Evidence Relied on to Reach Decision," reads as follows:
Johnson is charged with possession of a weapon, a can in a sock found in his locker. He denies knowledge of the item. Inmates do have the option of locking their lockers. The statement of the informant shows Johnson was involved in the incident. While inmate Hayes stated at his hearing Johnson had nothing to do with it, he did not do so until confronted with all the evidence and may have been trying to minimize the number of inmates found guilty of the offense. Hayes did not make the statement until siX days after the incident. Johnson states he was in his area at the time following the incident, while the weapon was there. There is substantial evidence that he was involved in the assault and had knowledge of the weapon. It is not shown that Johnson's witnesses would be aware of the contents of his locker.
Johnson now makes the following arguments:
APPELLANT JOHNSON WAS DENIED DUE PROCESS AND FAIRNESS WHEN THE HEARING OFFICER ARBITRARILY AND CAPRICIOUSLY FOUND HIM GUILTY OF POSSESSING A WEAPON THAT ANOTHER INMATE ADMITTED TO PUTTING IN HIS FOOTLOCKER.
APPELLANT JOHNSON WAS DENIED DUE PROCESS AND FAIRNESS WHEN THE HEARING OFFICER FAILED TO MAKE AN INDEPENDENT EVALUATION OF CONFIDENTIAL INFORMATION ...