September 27, 2007
WILSON MORALES, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Stern and A. A. Rodríguez.
Inmate Wilson Morales, appeals from a finding that he committed disciplinary infraction *.215, possession with intent to distribute or sell prohibited substances such as drugs, intoxicants or related paraphernalia, N.J.A.C. 10A:4-4.1. We affirm.
These are the salient facts. Morales is classified as a "special needs" inmate. On July 6, 2006, Investigator Raphael Dolce of the Special Investigations Division conducted a search of Morales's cell. He found thirty-four individual folds of paper containing an unidentified substance, which was secreted in a pair of socks, in a storage container, beneath Morales's bed. Dolce suspected that the paper folds were heroin packaged for distribution. Dolce issued the disciplinary charge. Morales pleaded "not guilty," indicating that his cell mate "had set me up." The matter was referred to court-line.
The first hearing date was postponed at Morales's request. The hearing was postponed two more times pending receipt of a report from the SID. Then Morales requested an adjournment pending receipt of the New Jersey State Police laboratory report. After the laboratory reports confirmed that the paper folds contained heroin, the hearing proceeded.
Morales requested counsel substitute. This request was granted. He declined to call witnesses on his behalf during the investigation and during the hearing. Morales was offered the opportunity for in-person confrontation, but declined the offer.
Hearing Officer Maniscalco found Morales guilty of disciplinary infraction *.215, and imposed the following sanctions: 15 days detention; 365 days loss of commutation credit; and 365 days administrative segregation. The hearing officer referred Morales to the Classification Committee for: 365 days urine monitoring; permanent loss of contact visits; and enrollment in a drug treatment program.
Hearing Officer Maniscalco requested a psychological evaluation of Morales to determine whether Morales would decompensate if placed in administrative segregation. The mental health report labeled "Confidential Appendix" was issued indicating that Morales could be placed in administrative segregation. Hearing Officer Maniscalco conducted a new hearing to consider the effect of Morales's mental health evaluation on the disciplinary adjudication. A civilian staff member served as Morales's counsel substitute because the institution was locked down for security reasons. During the lockdown, no inmate movements were permitted and, therefore, a staff member was required to act as counsel substitute. The Hearing Officer considered all of the evidence, and imposed the same sanctions but added a referral to the psychologist to determine Morales's risk of future offense for possession of narcotics with intent to distribute.
Morales administratively appealed the decision based on an alleged violation of standards and a plea of leniency. Assistant Superintendent Donald Mee upheld the guilty finding and sanctions. He concluded that "[t]here was compliance with the New Jersey Administrative Code on inmate discipline which prescribes procedural safeguards" and that the decision of the Hearing Officer was based on substantial evidence."
Morales appeals contending:
IF MR. MORALES WOULD HAVE RECEIVED A DISCIPLINARY HEARING ACCORDING TO 10A:4 AND GIVEN A PROPER INVESTIGATION BY THE SECURITY INVESTIGATION DIVISION (S.I.D.) HE WOULD HAVE NOT BEEN FOUND GUILTY.
In a reply brief Morales contends:
ARGUMENTS RAISED IN MORALES'S BRIEF REGARDING MULTIPLE DUE PROCESS VIOLATIONS SHOULD BE SEEN IN LIGHT OF HIS MENTAL HEALTH CONDITION.
THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE OVERTURNED BECAUSE MORALES'S DISCIPLINARY HEARING DID NOT COMPORT WITH PROPER PROCEDURES FOR MENTALLY ILL INMATES.
We are not persuaded.
Our scope of review is limited. If the adjudication is arbitrary, capricious, unreasonable or unsupported by substantial credible evidence, we will intervene. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Otherwise, we must affirm. Ibid.
Here, we have considered these contentions in light of the entire record, including the confidential appendix against the applicable standard. We are convinced that Morales's disciplinary hearing comported with the necessary procedural due process requirements. See McDonald v. Pinchak, 139 N.J. 188, 198-99 (1995). We merely note that the delay by the Department of Corrections to process the charges against Morales was harmless error, if it was error at all. Morales did not suffer any prejudice as a result of the delay. See State v. Macon, 57 N.J. 325, 337-38 (1971) (holding that harmless error will be disregarded by the appellate court). We are also convinced that there was substantial evidence to support the adjudication. Avant v. Clifford, 67 N.J. 496, 530 (1975).
Morales has filed motion M-6283-06 to compel release of the Confidential Appendix, or in the alternative to release a redacted version of the Confidential Appendix. We deny that motion at this time. The Confidential Appendix contains the identity of an informant. For that reason, it cannot be released to Morales. N.J.A.C. 10A:4-9.15(b)(2). Moreover, the Confidential Appendix was considered only for purposes of determining the appropriateness of the sanction, specifically whether administrative segregation would be harmful. Because it is a diagnostic tool, it must remain confidential. N.J.A.C. 10A:71-2.1(a)(1). Given the limited use of the confidential appendix, there is no due process violation.
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