August 24, 2007
OJORE LUTALO, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2007
Before Judges C.S. Fisher and Grall.
Appellant Ojore Lutalo is an inmate incarcerated at New Jersey State Prison in Trenton. He is serving a forty-year sentence, twenty years of which he was required to serve without possibility of parole. He appeals from final decisions of the Department of Corrections (Department) finding him guilty of disciplinary infractions, N.J.A.C. 10A:4-4.1(a). We affirm in part and reverse in part.
On May 19, 2005, Lutalo was charged with possession of flyers, a card, a catalog, a magazine, paperback books and photos of machine guns and rifles that the Department alleged were related to a security threat group (STG). The materials were forwarded to the Department's Special Investigation Department (SID), but its officers determined that the materials did not qualify as STG materials. Lutalo was found not guilty.
Lutalo's cell was searched again on June 1, 2005 and additional written materials, including handmade posters in various stages of completion and a bag containing newspaper clippings used to produce the posters, were seized. Based on possession of the materials seized in May and June, on June 10, 2005, Lutalo was charged with disciplinary infraction *.803/.206, attempting, aiding or planning conduct that disrupts or interferes with the security or orderly operations of the correctional facility. On July 11, 2005, he was found guilty and received a sanction of 15 days' detention, 365 days' administrative segregation and 365 days' loss of commutation credit. On July 14, 2005, his administrative appeal from that determination was denied and the finding of guilt and sanction were upheld.
On August 5, 2005, Lutalo was charged with the following additional infractions: *.704, perpetrating fraud, deceptions, confidence games, riots or escape plots; .705, operating a business or non-profit enterprise without approval of the Superintendent, and .706, soliciting funds or contributions except as permitted by the Administrator. On August 29, 2005, Lutalo was found guilty of all three charges and received a sanction equivalent to time he had served pending adjudication of the charge. In addition, he was required to forfeit funds deposited in his account and his typewriter and its ribbons. On September 1, 2005, his administrative appeal was denied and the finding of guilt and sanction were upheld.
Lutalo filed a notice of appeal from the July 14 and September 1, 2005 final decisions on March 2, 2006. On March 20, 2006, this court granted Lutalo leave to file the appeal as within time. After he filed his brief on the merits, the Department moved for a remand to permit further review of the *.803/.206 charge. That motion was initially denied but subsequently granted on the Department's motion for reconsideration. On remand, a hearing officer reviewed the evidence and concluded that the charge should be downgraded from *.803/.206, attempting, aiding or planning conduct that disrupts or interferes with the security or orderly operations of the correctional facility, to .210, possession of materials not authorized for retention. The officer went to Lutalo's cell in a "close custody housing unit," spoke to him at his cell door and "advised him that the charge had been downgraded to OTSC [an on-the-spot correction] with a sanction of confiscation." Subsequently, this court granted the Department's motion to supplement the record with the hearing officer's report and reserved decision on the Department's motion to dismiss Lutalo's appeal from the *.803/.206 charge as moot.
Lutalo, who is represented on this appeal, raises the following arguments:
I. THE JUNE  AND AUGUST 2005 DISCIPLINARY SANCTIONS MUST BE VACATED BECAUSE THEY WERE NOT BASED ON SUBSTANTIAL EVIDENCE THAT MR. LUTALO COMMITTED A PROHIBITED ACT AND VIOLATED PRINCIPLES OF FAIRNESS.
II. MR. LUTALO'S JUNE 2005 DISCIPLINARY SANCTIONS, BASED IN PART ON HIS POSSESSION OF ITEMS THAT FORMED THE BASIS OF HIS MAY 2005 DISCIPLINARY CHARGE, VIOLATED PRINCIPLES OF FUNDAMENTAL FAIRNESS.
III. DISGUISED AS DISCIPLINE FOR REGULATIONS VIOLATIONS THE ACTIONS HERE IMPROPERLY DEPRIVE MR. LUTALO OF EXPRESSIVE RIGHTS.
The issue raised in Point II of Lutalo's brief lacks sufficient merit to warrant more than the brief comment that follows. See R. 2:11-3(e)(1)(E). Neither the law nor the record supports the claim. Because "[p]rison disciplinary hearings are not part of a criminal prosecution, Wolff v. McDonnell, 418 U.S. 539, 556[,] 41 L.Ed. 2d 935, [951,] 94 S. Ct. 2963[, 2975] (1974), and therefore do not implicate double jeopardy concerns, see Breed v. Jones, 421 U.S. 519, 528, 44 L. Ed. 2d 346[, 354-55,] 95 S.Ct. 1779[, 1785] (1975) (application of the double jeopardy clause is limited to proceedings which are 'essentially criminal')." Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir. 1994). The Department issued the June charges after a second search of Lutalo's cell and confiscation of additional materials adequate to support the charge. Thus, the infraction was based, at least in part, on different evidence and conduct. For that reason, we decline to consider whether principles of fundamental fairness would bar repeated attempts to establish disciplinary infractions based on the same conduct.
Lutalo's challenge to the adequacy of the evidence supporting the June 2005 charges, which is argued in Point I of his brief, is moot. On remand from this court, the June 2005 charges were downgraded to an on-the-spot correction for possession of unauthorized materials. The adjudication and sanction imposed as a consequence of the *.803/.206 charge have been removed from his record. Lutalo does not contend that he was denied the procedural protections required prior to minor disciplinary action of the sort involved here or that his possession of the materials was authorized. See N.J.A.C. 10A:4-7.2(a),(e); Avant v. Clifford, 67 N.J. 496, 519 (1975) (concluding that N.J.A.C. 10A:4-7 affords all procedural protections due prior to an on-the-spot correction).
The Department's determinations that Lutalo committed infractions *.704, perpetrating fraud, deceptions, confidence games, riots or escape plots; .705, operating a business or nonprofit enterprise without approval of the Superintendent; or .706, which prohibits solicitation of funds or contributions except as permitted by the Administrator, cannot, however, be affirmed. The record does not include sufficient credible evidence to support a finding of guilt on any of those charges.
On July 26, 2001, the Department granted "Michael Hajduk -Media Representative" permission to interview Lutalo. Hajduk completed a form agreement prepared by the Department. On the form, he provided a phone number and identified himself as a "freelancer." He agreed to "provide no compensation, either direct or indirect," to Lutalo or members of his family. He acknowledged that the "videotape or film is for broadcasts or airing no more than twice on the station of origin for news or documentary purposes . . . and that the sale or rental of film, videotape, movie or other material for additional pecuniary gain is prohibited."
Lutalo signed a consent form prepared by the Department on which he acknowledged his agreement to be interviewed by Hajduk, a "media representative" with "Comcast Cable." He also acknowledged his consent to Hajduk's use of any videotape and information gathered, and the Department's release of any relevant information about him. The form Lutalo signed does not refer to the agreement between the freelancer and the Department or otherwise limit use of the video.
The record does not include any document in which either Lutalo or Hajduk made any representation about the content of the interview. Neither Hajduk's agreement nor Lutalo's consent form addresses the subject matter or purpose of the interview. The investigation report states that Hajduk's video was to be entitled "MCU's Extended Isolation and Prisoner's Rights," but the basis for that conclusion drawn by the Department is not identified.
A videotape of Lutalo entitled "Welcome to the Terrordome" was produced. According to the Department's report, that video shows Lutalo discussing "Attica and Prison Reform," "Purpose of State and Class," the "Black Liberation Army" and "Banned and Censored." Comcast's President subsequently told a SID investigator that Hajduk never worked as a reporter or freelancer for Comcast, but the President also explained that Hajduk "airs a program on a community access channel and uses their editing facilities." Bonnie Kerness, of Prison Watch, wrote to Lutalo and suggested production of a video telling Lutalo's story for a cable show known as "Konnections."
The Department's investigators searched the internet and found a website on which a video of the Lutalo interview was offered for sale at a price of $15.00 with a representation that the "Proceeds from sales are sent directly to Ojore [Lutalo]." A flyer promoting the video was among the documents found in Lutalo's cell. While that flyer provides information on how to obtain a copy of the video, it does not refer to sales or a sales price.*fn1
The "confidential appendix" the Department submitted on this appeal includes articles that a reasonable person could understand as soliciting cash and postage stamps for distribution to specified inmates, including Lutalo. One of the articles lists Lutalo as a member of a committee that makes decisions about distribution of the contributions collected.
Another includes a statement praising this support program that is attributed to Lutalo.
The Department also reviewed records of Lutalo's prison trust account. Deposits in varying amounts totaling $2098.15 were made between January 1, 2001 and August 1, 2005, by "Lancaster ABCF," a branch of the Anarchist Black Cross Federation, and Fasnacht, a member of that organization. Without stating a basis in the record, the Department concluded that these deposits, some of which were made prior to the July 2001 interview, were from proceeds of the sale of the video.
Lutalo maintained that these deposits were donations. Fasnacht, who identified himself as a member of the ABCF, submitted a letter in support of that claim. According to Fasnacht, he organized the support program and Lutalo received donations but had no role in the solicitation.
The hearing officer's decision, which was adopted by the Department without additional comment or explanation, includes the following findings. A representative from Comcast Cable was given permission to interview Lutalo for purpose of producing a program "entitled MCU's Extended Isolation and Prisoners['] Rights." The video produced after that interview was entitled "Welcome to the Terrordome." The interviewer's agreement with the Department prohibited sale of the video. Deposits were made to Lutalo's account, which he contends are donations. Kerness did not explain how Lutalo had a video for sale and did not provide her address or phone number in her letter. Based on those findings, and without further explanation, the hearing officer concluded that Lutalo was "guilty of all three charges."
Although this court may not substitute its "judgment for that of the agency where [the] findings are supported by substantial credible evidence in the record," Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005); see Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (discussing review of decisions of an administrative agency), "we cannot be relegated to a mere rubber-stamp of agency action." Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000). We do not affirm an agency decision that is not supported by substantial credible evidence in the record.
In this case, the evidence does not support the decision made by the hearing officer and adopted by the Department. There is nothing in this record that indicates that Lutalo made any representation about the subject matter of his video interview or any false representation about Hajduk's status or affiliation. We see no basis for the conclusion that Lutalo engaged in conduct involving false pretense, fraud or deception in connection with the video, and the Department's decision does not explain how it reached that conclusion. The Department's decision is not based on a finding that Lutalo benefited from and lent his name to a campaign for charitable contributions; it is based only on the Department's conclusion that the deposits were traceable to sales of the video.
There was no evidence linking the deposits in Lutalo's account and proceeds from the sale of the video and no evidence of Lutalo's involvement in marketing the video or soliciting contributions in return for its distribution. The Department's decision is nothing more than a conclusory assertion of Lutalo's guilt that is not supported by or explained with reference to substantial credible evidence in the record. More is required to permit us to defer to the expertise of the Department and its investigators. See Williams, supra, 330 N.J. Super. at 203-05.
The adjudication and penalties imposed for disciplinary infractions *.704, .705 and .706 are reversed and vacated; the on-the-spot correction for possession of unauthorized materials is affirmed; the Department previously vacated the adjudication and penalty imposed for infractions *.803/.206.