April 9, 2008
DARIUS MURPHY, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2008
Before Judges Parker and Lyons.
Darius Murphy (Murphy), an inmate at New Jersey State Prison in Trenton, appeals from a final decision issued by the Department of Corrections (DOC) imposing prison discipline.
After consideration of his contentions raised in this appeal, we affirm.
The relevant facts are as follows. The DOC Special Investigations Division (Division) had conducted an investigation regarding a conspiracy to obtain contraband, particularly drugs and cellular telephones, in the prison by inmates through compromised prison staff. The Division's report provides details concerning this conspiracy. The Division's information concerning this conspiracy was gathered through confidential informants, videotaped interviews, and recorded telephone conversations. These sources revealed that Murphy and other inmates solicited family members, friends, and other members of the public to obtain cellular telephones and drugs for delivery into the prison. Murphy was reported to have made telephone calls that detailed the operation, including one conversation with another inmate during which time they discussed the purchase and delivery of drugs and cellular telephones into the prison by compromised prison staff.
Based upon this investigation, Murphy was charged on June 1, 2007, with the following disciplinary infractions: conduct which disrupts or interferes with the security or orderly running of the correctional facility in violation of N.J.A.C. 10A:4-4.1 *.306; attempting to commit a violation of N.J.A.C. 10A:4-4.1 *.009, the misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device in violation of N.J.A.C. 10A:4-4.1 *.803; and attempting to commit a violation of N.J.A.C. 10A:4-4.1 *.215, possession with intent to distribute or sell prohibited substances such as drugs, intoxicants, or related paraphernalia in violation of N.J.A.C. 10A:4-4.1 *803.*fn1
On June 4, 2007, the hearing officer postponed the adjudication hearing in order to obtain additional confidential evidence from the Division. On June 6, the hearing officer again adjourned the hearing because he had not received the confidential information to review. On June 8, the hearing was adjourned so that the hearing officer could review the videotaped interviews. And, on June 11, the hearing was postponed so the hearing officer could review the recorded telephone conversations. The hearing was held on June 13, 2007.
Murphy was represented at the hearing by a counsel substitute. He pled not guilty to all the charges. Murphy did not testify and deferred to his counsel substitute. With respect to the *.306 charge, counsel substitute stated that the record did not support a finding that the inmate disrupted the facility. As to the other two charges, counsel substitute stated that "there is insufficient evidence to support a finding of guilt." No witnesses were called by Murphy, and he declined an offer to have witness statements collected on his behalf. He also declined to confront any adverse witnesses.
The hearing officer relied on the statements and reports of representatives of the Division, as well as summaries of the confidential information, the video summaries, and telephone recordings in arriving at his determination. The hearing officer found Murphy guilty of all charges. The sanctions for the *.306 and *.803/*.009 charges were combined to fifteen days detention, with credit for time served, 365 days administrative segregation, 365 days loss of commutation time, permanent loss of contact visits, and 365 days loss of telephone privileges. On the *.803/*.215 charge, Murphy received sanctions of fifteen days detention, with credit for time served, 365 days administrative segregation, 365 days loss of commutation time, 365 days loss of telephone privileges, and a referral to a drug treatment program. All of the sanctions are to be served consecutively. Following the assistant superintendent of the prison's affirmance of the hearing officer's decision, this appeal ensued.
On appeal, Murphy raises the following arguments for our consideration:
APPELLANT DENIED DUE PROCESS REQUIRED BY NEW JERSEY ADMINISTRATIVE CODE.
(a) Hearing Officer Denied Appellant Due Process According To N.J.A.C. 10A:4-9.8.
(b) Appellant Denied Due Process As Cited In N.J.A.C. 10A:4-9.12.
(c) Hearing Officer Erred By Not Affording Appellant Adjudication Sheets As Cited In N.J.A.C.
(d) Appellant Denied Due Process As Cited In N.J.A.C. When Appeal Was Not Signed Upon Receipt.
HEARING OFFICER ERRED BY FINDING OF GUILT THAT WAS UNSUPPORTED BY EVIDENCE.
HEARING OFFIEER [SIC] ABUSED HIS DISCRETION IN DISPARITY OF SANCTIONS.
We begin by reviewing applicable legal principles.
Although prisoners are not entitled to the same level of due-process rights as free persons, they are not "wholly stripped of constitutional protections." Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed. 2d 935, 950 (1974). However, the due-process rights of convicted persons serving time behind bars are not the same as those for persons merely charged with a crime. Id. at 556, 94 S.Ct. at 2974, 41 L.Ed. 2d at 951. Under the Fourteenth Amendment, constitutional rights are abridged to the extent necessary to accommodate the institutional needs and objectives of prisons. Ibid.
In New Jersey, the administrative rules and regulations that govern the fulfillment of due-process rights for prisoners are balanced against the needs and objectives of the prison. . . . . . . .
. . . At a minimum, the United States Constitution requires that an inmate facing disciplinary charges receive: (1) a written notice of the alleged violation; (2) a written statement of the evidence relied on and the reasons for the disciplinary action taken; (3) a right to call witnesses and a right to present documentary evidence, when doing so would not be unduly hazardous to institutional safety or correctional goals; and (4) a right to assistance from a counsel substitute where the inmate is illiterate or the issues too complex for the inmate to marshal an adequate defense. Id. at 563-70, 94 S.Ct. at 2978-82, 41 L.Ed. 2d at 955-59. [McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995).]
We note that Murphy's arguments regarding alleged due process violations were in large measure not raised at the disciplinary hearing. Ordinarily, we would not consider such issues because they were not raised at that hearing. See Bryant v. Dep't of Corr., 258 N.J. Super. 546, 548. However, we have chosen to address the issues raised in Murphy's brief.
We note first of all that all of the minimum due process requirements to be afforded to an inmate pursuant to law were accorded Murphy. He did receive written notice of the violations; a written statement of the evidence relied on and the reasons for the disciplinary action taken was provided to him; a right to call witnesses and to present documentary evidence; and assistance from a counsel substitute.
Murphy argues that the timing of the hearing violated N.J.A.C. 10A:4-9.8. That rule specifically permits "reasonable postponements" when an inmate is confined in pre-hearing detention. It further provides in N.J.A.C. 10A:4-9.7(b) that additional postponements shall be granted only in exceptional circumstances. In this case, there was an extensive investigation conducted by the Division. Its reports were lengthy and detailed. We find, given the volume and type of Division reports and evidence the hearing officer had to carefully review, that the postponements to afford the hearing officer time to review the Division materials constituted exceptional circumstances and support the reasonable postponements set forth in the record.
Murphy also argues that his counsel substitute should have been afforded twenty-four hours to prepare his defense in accordance with N.J.A.C. 10A:4-9.12(d). In point of fact, Murphy was provided with the charges on June 1, 2007, and the hearing was not held until June 13. Murphy, therefore, was afforded significant time to prepare a defense with his counsel substitute. There is no indication in the record that the counsel substitute did not meet with Murphy or that he requested an adjournment at the time of the hearing. Given the fact that Murphy had significant time between the receipt of the charges and the hearing to prepare, and in the absence of a request for an adjournment by counsel substitute, we find any deviation from the twenty-four hour rule set forth in N.J.A.C. 10A:4-9.12(d) to be harmless. See Jacobs v. Stephens, 139 N.J. 212, 218-20 (1995).
Murphy next argues that he was denied due process by not receiving a written statement of the factual findings at the time of the conclusion of the hearing pursuant to N.J.A.C. 10A:4-9.24. We note that rule does not require a written statement to be provided at the time of a hearing. Murphy did receive a written statement from the hearing officer five days following the hearing which outlined the evidence relied upon, the decision, and the reason for the disciplinary action. Accordingly, we find that argument to be without merit.
Murphy's last due process argument concerns N.J.A.C. 10A:4-9.11(b). That rule has no bearing to this case. It deals with in absentia hearings. That was not the case here. We, therefore, conclude that there were no due process violations which would merit reversal.
Murphy also asserts that the findings of guilt were not supported by substantial evidence. As we said in Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005):
N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record. Henry v.
Rahway State Prison, 81 N.J. 571, 579-80 (1980).
We are satisfied from a careful review of the hearing officer's written decision, as well as the reports and submissions in the record, that the hearing officer's findings were supported by substantial credible evidence. In both the summaries and the confidential materials, there is more than sufficient evidence to demonstrate Murphy was involved in making plans to obtain cellular telephones and drugs in the prison. Moreover, Murphy's activities brought about a major investigation and certainly resulted in disruption or interference with the security or orderly running of the prison.
Lastly, Murphy argues that the hearing officer and the department abused their discretion with respect to the sanctions imposed. N.J.A.C. 10A:4-5.1 outlines the schedule of sanctions for prohibited acts. All of the sanctions imposed upon Murphy for those offenses for which he was found guilty are specifically authorized by N.J.A.C. 10A:4-5.1. In light of the seriousness of the charges, we see no abuse of discretion by the DOC in imposing the sanctions it did on Murphy. We consequently affirm in all respects the final decision of the DOC.