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Allah v. Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 19, 2008

WISE ALLAH, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 14, 2008

Before Judges Sapp-Peterson and Messano.

Wise Allah appeals from a final administrative decision of the Department of Corrections (DOC) imposing sanctions against him for committing disciplinary infraction *.010--participating in an activity related to a security threat group--in violation of N.J.A.C. 10A:4-4.1. After consideration of the arguments raised in light of the record and applicable legal standards, we affirm.

Appellant is currently an inmate at Northern State Prison serving a sixty-five-year aggregate sentence for three counts of first-degree robbery and one count of possession of a weapon. On February 6, 2007, appellant was served with a disciplinary charge that alleged he had "mail[ed] a letter containing known security threat group related information to the Union County [] jail." Members of the internal affairs unit of that facility intercepted the letter that was addressed to Union County inmate Jadon Russell as part of an ongoing investigation and forwarded it to DOC's Special Investigations Unit. Appellant pled not guilty to the charge, requested counsel substitute, but did not request that any witnesses be contacted on his behalf.

Prior to the disciplinary hearing, appellant was permitted to review the intercepted letter and to pose confrontation questions to DOC's investigator, Raphael Dolce. Appellant requested the opportunity to also confront investigator Roberts from the Union County Jail who had forwarded the intercepted letter to DOC; however, Roberts refused to participate.*fn1

The hearing officer considered Dolce's report and his testimony that the intercepted letter contained references to gang-related activity. Specifically, Dolce concluded that the letter "contain[ed] language consistent with that of the 'Bloods' gang."

Appellant denied that the letter contained any gang-related references and claimed that "B-Rock," an individual referenced in the letter, was actually a high school basketball coach that he knew. He offered a letter from another individual that supported this claim. Appellant also argued that the charge should be dismissed because his right to confront Roberts had been denied.

Noting Robert's only involvement was to forward the letter to Dolce, the hearing officer "g[ave]her report . . . the appropriate consideration." Since she did not work for DOC, the hearing officer concluded that he had no authority to compel Roberts's participation. Based upon Dolce's training, and his testimony and reports, the hearing officer concluded that appellant was a "validated member of the [] 'Bloods' gang"; his letter referenced someone "validated as a member of the [] 'Bloods' gang"; and that specific language in the letter was "vernacular terminology consistent with the [] 'Bloods' gang." The hearing officer sustained the disciplinary charge and imposed the following sanctions: fifteen days detention with credit for time served; 365 days administrative segregation; 365 days loss of commutation time; and referral to DOC's Special Investigation Division for future placement.

In his administrative appeal, appellant argued that the charge should have been dismissed because DOC failed to adduce substantial evidence of his violation and because he was denied his right to confront Roberts. He also sought a reduction of the sanctions imposed. On March 8, 2007, his administrative appeal was denied and this appeal ensued.

Before us, appellant renews the arguments he raised during the administrative proceeding. He also asserts, for the first time, that he was denied due process because of delays in the proceedings that were not occasioned by his defense.

As to this latter point, it was not raised below and therefore is not properly before us. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973). We only add that any delay was partially occasioned by appellant's request to review the evidence and conduct confrontation, and his failure to submit those questions he intended to pose in a timely fashion. Lastly, failure to adhere to any of the regulatory time limits does not mandate a dismissal of the charge. N.J.A.C. 10A:4-9.9(a).

Appellant also argues that there was insufficient evidence to support the finding that he committed the disciplinary infraction. We disagree.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). DOC's regulations require any "finding of guilt at a disciplinary hearing" to be "based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In Re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961).

In this case, appellant, himself a "validated" member of the Bloods gang, a recognized security threat group, sent a letter to an inmate in the Union County Jail. It referenced another "validated" member of the Bloods and the "structure [of] our family," a reference to the gang. Furthermore, the letter inquired as to the status of an individual described as holding "[five] championship rings," in the "vernacular" used by the gang, a reference to the individual's status as a five star general in the Bloods. In short, we conclude that DOC's decision that appellant committed a *.010 infraction was supported by sufficient credible evidence.

Lastly, appellant argues his due process rights were denied because the hearing officer did not require Roberts to submit to confrontation questioning. We find this argument to be unpersuasive.

N.J.A.C. 10A:4-9.14(a) permits an inmate "[t]he opportunity for confrontation and cross-examination of the accuser(s) and/or the State's witness." However, confrontation and cross-examination may be refused by the hearing officer if "[i]rrelevant", or if the request is "to call a witness who is not employed . . . by [DOC]." N.J.A.C. 10A:4-9.14(b)(2) and (7). The Supreme Court has specifically concluded the regulation provides adequate due process guarantees. MacDonald v. Pinchak, 139 N.J. 188, 198-99 (1995).

Here, the hearing officer specifically denied appellant's request noting that Roberts was not employed by DOC. He further concluded her only involvement was to forward appellant's letter to Dolce for whatever action he deemed to be appropriate. We discern this reflects the hearing officer's conclusion that any testimony offered by Roberts would likely be cumulative or irrelevant to the issues at hand, and we agree with that determination.

Affirmed.


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