On appeal from the Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2007
Before Judges Lintner, Graves and Sabatino.
Appellant Shaun D. Shaw is a state prisoner. Shaw appeals a final decision of the Department of Corrections disciplining him for possessing in his prison cell two letters containing numerous references to a Security Threat Group ("STG"), in violation of *.011, an asterisked offense under N.J.A.C. 10A:4-4.1. We affirm.
The underlying facts that emerged at Shaw's disciplinary hearing are essentially undisputed. During a routine inspection of Shaw's cell at the Garden State Youth Correctional Facility on September 18, 2006, corrections officers discovered two handwritten letters and accompanying envelopes. The letters, respectively dated August 21 and September 13, 2006, were written to Shaw by his brother, who is an inmate at the Essex County Jail. The letters were confiscated because they appeared to contain several instances of gang terminology, including references to, or terms associated with, the Crips gang. The letters were presented to the Special Investigations Division of the Department, and they were analyzed for their content by Senior Investigator Brian Bonomo of that unit.
Investigator Bonomo, who has been specially trained and dealing with gang-related matters for more than five years, concluded that the letters found in Shaw's cell did in fact contain numerous gang references. In particular, the investigator noted:
The confiscated material is related to the Security Threat Group (STG) "Crips." The term[s] "C"ing["] and "cit, cat, cooling" [in the letters] are terms commonly used by "Crip" members to show their affiliation to the gang. The colors blue and gray [also referred to in the letters] are known "Crip" colors that are associated with the gang. [The phrase] "C's up" [in the letters] also show[s] a person['s] affiliation to the "Crips" by referencing the letter "C" for "Crip."
Consequently, the investigator concluded that the seized material was STG-related.
Shaw was charged with violating *.011, which prohibits the "possession or exhibition of anything related to a Security Threat Group." Around the same time, Shaw was separately charged with violating disciplinary provision .402, for being present in an unauthorized area. He was served with these charges, and appeared with a designated counsel-substitute for an administrative hearing on September 20, 2006.
The Department presented at Shaw's administrative hearing the reports of the investigating officers, including the STG analysis of the letters that had been conducted by Special Investigator Bonomo. Shaw declined the opportunity to confront the Department's witnesses, or to call witnesses of his own. He chose not to testify himself, offering no explanation whatsoever about why he had kept the letters or about his understanding of the gang references within them.
Shaw was found guilty of both the *.011 and the .402 infraction. As discipline for the *.011 STG offense, Shaw sustained a loss of thirty days of recreation privileges. For the .402 offense, which is not challenged on the present appeal, Shaw received more severe sanctions, specifically 180 days in segregated housing, thirty days in "lock up" and his removal from an institutional program known as "Focus on the Victim."
Shaw filed an administrative appeal of his discipline, which was denied by the Department's associate administrator on September 25, 2006. The administrator determined that the violations were established by substantial credible evidence, and that the sanctions imposed were proportionate to the nature of the offenses and Shaw's disciplinary history.
Shaw appeals to this court solely the *.011 violation. He argues that the letters confiscated from his cell were not STG materials. Rather, he contends that they simply amounted to benign "familial communications" from his brother recounting the conditions at a different penal facility, and ...