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Wilkins v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 16, 2007

ELTON WILKINS, PETITIONER-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT-RESPONDENT.

On appeal from a Final Determination of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2007

Before Judges Kestin and Payne.

Petitioner, Elton Wilkins, appeals from disciplinary sanctions imposed upon him for committing prohibited acts described in N.J.A.C. 10A:4-4.1(a) as *803/*306, attempting to commit conduct that disrupts the orderly running of the correctional facility. He was sanctioned with fifteen days of detention, 365 days of administrative segregation and 365 days' loss of commutation time.

On appeal, Wilkins raises the following arguments:

POINT ONE

BECAUSE THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL AND CREDIBLE EVIDENCE THAT APPELLANT ACTUALLY COMMITTED A PROHIBITED ACT OF CONDUCT WHICH DISRUPTS, THE DECISION OF THE HEARING OFFICER SHOULD BE VACATED.

POINT TWO

THE FAILURE TO PROVIDE THE APPELLANT WITH A POLYGRAPH EXAMINATION WHEN THE SOLE BASIS OF THE DISCIPLINARY CHARGE AGAINST HIM WAS PREDICATED ON THE UNCORROBORATED WORD OF A CONFIDENTIAL INFORMANT DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO DEFEND AGAINST THE CHARGE AND PRESENT EVIDENCE IN SUPPORT OF HIS DEFENSE.

We affirm.

The record discloses that, on May 30, 2006, a confidential informant approached Senior Corrections Officer Chance at the Southern State Correctional Facility and, according to the officer's report, informed her that:

[T]here was going to be a major problem between the Bloods and the Crips. He stated that a tall skinny black I/M out of 10-Unit (a Blood) went to the Latin Kings on 5-29-06 and asked for their assistance in a large scale assault on the Crips this morning on the compound at Compound B. This had come about due to an assault that took place in Unit 7 on 5-28 on I/M Williams #118 (a Blood). He was assaulted by a Crip and the Bloods were upset about this and therefore decided to launch an assault on the Crips.

Chance continued her report by stating:

Upon speaking with several other I/Ms, Bloods, Crips, Latin Kings and non-affiliates -- they all stated that a major problem was in the works if something was not done soon.

Further investigation revealed that the I/M out of Unit 10 that went to the Latin Kings for help is a Blood named "Braveheart." He did not have proper authority to do this from the other Bloods, creating a risk to his own safety from other Bloods. The Latin Kings told "Braveheart" that they would not back him.

"Braveheart" was subsequently identified as Wilkins, an inmate whose cell was located next to that of Williams, although both men denied knowing each other. Additionally, Wilkins denied being a member of the Bloods or any other gang, denied approaching the Latin Kings, and claimed that he was not the only "Braveheart" in the facility. However, he was unable to identify another inmate with that nickname. Wilkins's request for a lie detector test was denied.

Further investigation disclosed that the confidential informant had provided reliable information on three occasions in the past. His description of Braveheart matched Wilkins' physical appearance. No other persons nicknamed Braveheart could be identified as inmates in the Unit. Additionally, it was determined that both Wilkins and Williams were members of the same MOB Piru Blood set. According to the prison's investigation, "since there are few other MOB Piru BLOODS at SSCF, BRAVEHEART desired assistance from the L. KINGS. The LKs turned him down having determined that the incident between IMs Williams and Valentine was over a personal conflict and that the incident was not a gang matter."

Following a hearing at which the foregoing information was considered, the hearing officer found Wilkins guilty of prohibited acts *.803/*.306. The officer's decision was affirmed on appeal.

In the present appeal, Wilkins claims that the hearing officer should have credited his denials, and that discipline was wrongly imposed solely on the basis of "the word of a confidential informant, for a prohibited act that never occurred." Our review of the record satisfies us that Wilkins's characterization of the evidence is not correct, and that substantial evidence supported the allegation that he had sought the aid of the Latin Kings in avenging harm allegedly suffered by Williams. Jacobs v. Stephens, 139 N.J. 212, 222-24 (1995). Although the charges against Wilkins arose initially out of the report of a confidential informant, it is clear from the record that substantial efforts were made by prison officials to confirm the informant's allegations regarding Wilkins's identity and conduct. The record, as we have described it, clearly indicates that such confirmation was, in fact, obtained. We defer to the expertise of corrections officials in determining that the threat posed by Wilkins's attempt to incite gang warfare was significant, even if unrealized. Carter v. Twp. of Bordentown, ___ N.J. ___, ____ (2007) (slip op. at 11-12); Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). We likewise accord deference to the credibility determinations of the hearing examiner. Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1988); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Nor do we accept Wilkins's argument that the associate administrator of the facility abused his discretion when, on June 12, 2006, prior to the hearing on the charges against Wilkins, the administrator denied Wilkins's request for a polygraph, stating that issues of credibility could be determined at the hearing itself. In this case, the evidence resulting from the prison's investigation of the confidential informant's charges uniformly identified Wilkins as the person who approached the Latin Kings. Although Wilkins denied that fact, he failed to propose anyone else to whom the charges could pertain. In these circumstances, we do not regard the fundamental fairness of the fact-finding proceeding to have in any respect been impaired as the result of the denial of Wilkins's polygraph request. Ramirez v. Dept. of Corrections, 382 N.J. Super. 18, 25 (App. Div. 2005). We thus conclude that the associate administrator's discretion was properly exercised.

Affirmed.

20070716

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