June 20, 2008
IBE ALLAH, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 27, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Appellant Ibe Allah appeals from final agency action by respondent Department of Corrections (DOC) finding a violation of *.009, Misuse or Possession of Electronic Equipment Not Authorized for Use or Possession, contrary to N.J.A.C. 10A:4-4.1. We reverse and remand this matter to the DOC for further proceedings consistent with this opinion.
On July 14, 2007, a Motorola Nextel i265 cell phone was found in the air vents of Dormitories #5 and #6 in Minimum 2 Unit at Northern State Prison in Newark. Allah was housed in Dormitory #5. The concealed cell phone was turned over to the Special Investigations Division, Computer Forensics Unit, for investigation.
On August 6, 2007, at 14:19, Jeffrey Poling of the Computer Forensics Unit retrieved a photograph of Allah from the concealed cell phone and transmitted the photograph to Senior Investigator J. Raboy. The photograph depicts Allah from the top of his head to the top portion of his upper arms. The record does not reveal what information the cell phone contained respecting calls received and made, nor does it indicate whether the identity of the subscriber was investigated. The record is also silent as to whether there were any text messages to or from the phone.
Also on August 6, 2007, at 15:15, Sergeant D. Coburn saw Allah holding a cell phone while he was in his bunk in Minimum 2 West. The phone was confiscated by SCO J. Dixon. Allah was handcuffed and escorted to the ACSU holding area by Coburn and SCO A. Clark without incident or injury, which was confirmed by Nurse Catherine Ijaola. Coburn completed an Authorization for Prehearing Detention Placement at 15:40. Both Coburn and Clark prepared reports about the cell phone they saw Allah holding, but the report of Clark indicates Allah was observed doing this at 15:10 and that he and Coburn were on their way to Allah's cell to apprehend him. The report does not indicate why they were already intending to apprehend him, although it is reasonable to infer that it was in connection with the concealed cell phone. A third report was prepared by Dixon, who indicated that at 15:25 he saw Allah with a black Motorola cell phone, which he seized and turned over to Coburn. The Seizure and Contraband Report indicates that the cell phone was seized by Dixon at 15:25. Allah was charged with a *.009 offense and he pled guilty to same, allegedly in exchange for an agreement that he would receive 185 days of administrative segregation (ADSEG) and 185 days loss of commutation time (LOCT).*fn1
Based on Allah's photograph stored in the concealed cell phone, he was charged on August 7, 2007, by Raboy with another *.009 disciplinary violation occurring on or before July 14, 2007. Allah's August 7, 2007, statement recorded in the Disciplinary Report respecting the charge was "no plea, no statement." He did not request statements from any witnesses but did request a counsel-substitute. The investigator concluded that the charge had merit.
The first hearing on August 10, 2007, was postponed for review of the photograph, which was accomplished on August 14, 2007, and a report was prepared, which we reproduce in its entirety here:
The hearing officer and Courtline officer went to SID to review the data on file in regards to the cell phone charges of inmate Allah #549229.
On Tues. 8/14/07 we spoke to Inv. Raboy who showed us the evidence on record, as well as the documented log file of what items were confiscated & logged in /i.e. the phone charger, Sim cards, [?]. Both phones confiscated were logged in w/Sim cards.
Inv. Raboy informed us that the phones did not have to take pictures themselves in order to have a picture transferred to a phone. A Sims card has the capabilities of transferring numbers, texts, pictures & data from one phone to another & an inmate who was in possession of one phone could use the Sim card to transfer information to another phone.
The Adjudication of Disciplinary Charge indicates that the offense occurred on August 6, 2007, but the evidence adduced at the second hearing on August 16, 2007, also related to the charge respecting the concealed cell phone. Allah pled not guilty at the hearing respecting the concealed cell phone and was represented by counsel-substitute Stratford. The record of the hearing indicates that Allah testified as follows:
He has no knowledge of the picture being in the phone. The phone was found in an air vent. He has no knowledge of how his picture got in the phone. Inmate: ["T]hat phone is not mine. I didn't have that phone. I am not saying that is not my picture. I am saying I didn't put it there.["]
Allah did not request any witnesses or submit any documents. He declined testimony from adverse witnesses.
Hearing officer Nolley summarized the "evidence relied on to reach a decision":
Inmate pleaded not guilty to charge. He stated the phone was not his. He stated he had no knowledge of the phone or how his picture got in the phone. Inmate Allah's picture can clearly be seen in the phone. He never denied the picture was his, only that he did not take it. There was no other inmate's picture in the phone. Based on reports, this charge is upheld.
Nolley did not make any explicit credibility determinations, although he implicitly found Allah not credible because his picture was in the concealed cell phone.
Nolley imposed sanctions of (1) ten days detention, (2) permanent loss of contact visits (PLOCV), (3) ninety days loss of telephone privileges (LOTP), (4) 185 days ADSEG and 185 days LOCT. Nolley explained that the reason for the sanction was:
"Inmate has to be held accountable for his actions. Cell phone use inside of the prison has to stop."
On August 16, 2007, Allah appealed, presenting a plea of leniency and explaining:
Mr. Allah states that he did not posess [sic] two phones, he admitted to using a phone but admits that the phone was not his, the phones were found in the cillind [sic] ducks [sic] and nobody was in passion [sic] of any of the phones, I am asking that all charges be dismissed against me due to lack of evadance [sic].
The Administrator or Designee upheld the decision of the hearing officer and explained, "There was compliance with the NJAC Title 10A on inmate discipline which prescribes procedural safeguards. The decision of the hearing officer was based upon substantial evidence." This appeal followed.
Allah raises the following issues for our consideration:
POINT I -- FAILING TO GIVE ME A TIMELY HEARING VIOLATED MY DUE PROCESS RIGHTS.
POINT II -- I HAVE A RIGHT TO EXAMINE THE REPORTS PROVIDED BY SID THAT WERE THE BASIS OF THE DECISION BY THE HEARING OFFICER.
POINT III -- THE REPORTS FILED BY THE DOC ARE ILLEGIBLE, AND I HAVE A RIGHT TO READ THE REPORTS OF THE HEARING OFFICER.
POINT IV -- I ASKED FOR A POLYGRAPH EXAMINATION AND WAS REFUSED. THIS WAS A VIOLATION [OF] "DUE PROCESS".
Allah further asserts in his reply brief that the sanctions imposed for the charge to which he pled guilty respecting the cell phone he had in his bunk were erroneously assigned to the charge he disputed in connection with the concealed cell phone, and vice versa. He also asserts:
I was never made aware of my rights to confront my accuser; that I could request to see the log of phone[ ]call[s] made on the cellular phone in question; speak to my substitute counsel before a hearing; the right to ask for a polygraph examination; and the right to an administrative appeal[.]
Allah contends that his counsel-substitute never advised him of these rights and provided him ineffective assistance. He also asserts that counsel-substitute filed the administrative appeal and signed Allah's name to it without consulting with him.*fn2 He concluded:
There is one (1) more problem the respondent must address. I plead [sic] to a *.009 charge for a cellular phone; and was to be given 180 days ADSEG; 180 days LOCT. But this charge I was given 365 ADSEG; and 365 LOCT. The Administration has reversed my sanctions. This is important, as should I prevail as to the charge I clearly deny, I will still be sanctioned incorrectly for the charge I readily and freely admitted guilt for.
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 to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
The due process rights of prisoners respecting disciplinary charges were identified by our Supreme Court in Avant. A prisoner has the right to written notice of the charges at least twenty-four hours prior to the hearing and the hearing shall be conducted "as soon as practicable and within one week of the alleged violation, under ordinary circumstances." Avant, supra, 67 N.J. at 525, 528. Allah received written notice of the charges respecting the concealed cell phone on August 7, 2007, at 10:40 a.m. The first hearing was scheduled for August 10, 2007, satisfying the right to notice twenty-four hours prior to the hearing. The second hearing was conducted on August 16, 2007, two days beyond the written notice of charges. This charge was not ordinary, involving an investigation by the Computer Forensics Unit. The short delay did not deprive Allah of his due process rights.
Prisoners have the right to an impartial tribunal, which may be associated with the administrative process. Id. at 525. Here, Nolley was a member of the DOC Central Office staff. Allah has not presented any evidence that Nolley was not impartial.
Prisoners "are allowed to call witnesses and present documentary evidence in their defense when such procedure will not be unduly hazardous to institutional safety or correctional goals." Id. at 529. The Disciplinary Report and the Adjudication of Disciplinary Charge both reflect that Allah did not request witnesses at the hearing and did not submit any documentary evidence. Prisoners also have a limited right to confront and cross-examine adverse witnesses. Id. at 529-30. Allah declined confrontation of adverse witnesses.
Prisoners have a right to a written statement of the evidence on which the hearing officer relied and the reasons for the sanctions imposed. Id. at 533. The handwritten Adjudication and the typed version fulfill this requirement.*fn3
The matter was determined on the reports, the documentary evidence, the pictures on the concealed cell phone and the testimony of Allah.
Finally, where the charges are complex, as here, prisoners should be provided with the assistance of a counsel-substitute. Id. at 529. The hearing officer is to "choose a sufficiently competent staff member or inmate to provide assistance." Ibid. (emphasis added). Furthermore, time is to be "provided for consultation between inmate and such counsel-substitute." Ibid. Additionally, Allah had a right to be present throughout the hearing. Id. at 528.
The DOC urges that none of Allah's due-process claims were presented at his administrative appeal and, thus, we should not consider them under Neider v. Royal Indemnity Insurance Co., 62 N.J. 229, 234 (1973). It is certainly correct to state, as the DOC does here, that the exceptions to Neider for issues going to the jurisdiction of the tribunal or concerning matters of great public interest do not apply here. However, Allah raises an issue respecting his counsel's incompetence, not only at the hearing but also in preparing and submitting the administrative appeal. He denies that he signed the appeal form and claims that his counsel-substitute forged his signature.
We have already observed that the person that prepared the appeal form was patently less literate than Allah. Additionally, the line in the bottom left corner of the appeal form for the signature of the inmate looks nothing like Allah's signature on the Disposition of Disciplinary Appeal because the handwriting is different, Allah signs his name "I Be Allah," and the signature on the appeal form is "Ibe Allah." Furthermore, the signature "Ibe Allah" is followed by the initials of the counsel-substitute in parentheses. We are satisfied that Neider, a civil case, was never intended to preclude our review of claims of ineffective assistance of counsel-substitute at a hearing and on administrative appeal in the context of prison disciplinary hearings.
In this case competent counsel-substitute ought to have advised Allah to request confrontation and cross-examination of Raboy. It is undisputed that he raised no objection to the "report" prepared by the hearing officer of the August 14, 2007, "interview" of Raboy out of the presence of Allah and his counsel-substitute. This was not a report prepared by a witness--it was nothing more or less than notes made by the hearing officer of testimony by Raboy. This procedure deprived Allah of his due-process right to be present, Avant, supra, 67 N.J. at 528, and should have been raised by his counsel-substitute at the August 16 hearing.
Most cell-phone users are aware that they can review a log of incoming and outgoing calls and text messages on their cell phones, yet counsel-substitute did not request this evidence to demonstrate that the phone did not belong to Allah. Counsel-substitute made no inquiry about any effort made to identify the cell phone subscriber with the cell service provider. He did not inquire about the nature of a Sim card or cross-examine Raboy with respect to the information he provided about it. A competent counsel-substitute would have done so.
Counsel-substitute may also have been ineffective respecting a polygraph examination.*fn4 It is undisputed that counsel-substitute did not advise Allah of his right to ask for a polygraph examination with respect to the concealed cell phone. Pursuant to N.J.A.C. 10A:3-7.1(a), a polygraph may be requested by the Administrator of the prison when "there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge[.]" Had Allah done so, the Administrator would have had to determine whether "there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corrections, 382 N.J. Super. 18, 20 (App. Div. 2005). The DOC argues that "the record does not contain any issues of credibility raised by conflicting, extrinsic evidence as contemplated by Ramirez." We disagree. Allah testified that he had no connection with the concealed cell phone and he did not know how his picture got into the phone. Nelley rejected that testimony, i.e., found that it was not credible, because his picture was in the phone. Significant sanctions were imposed here and the Administrator of the prison may well have granted a request for a polygraph had counsel-substitute advised Allah of his right to request one and Allah acted on that advice. If Allah in fact did not request a polygraph examination before August 16, counsel-substitute's representation of Allah was ineffective in this respect.
Inmates charged with asterisk offenses have the "the right to request representation by a counsel substitute." N.J.S.A. 10A:4-9.12. Although this is not equivalent to the constitutional right to counsel, it is among the procedural safeguards to which inmates are entitled when subject to disciplinary procedures. Avant, supra, 67 N.J. at 537. An inmate who receives assistance from a counsel-substitute who is not "sufficiently competent" has been effectively denied the due process protections established by the applicable regulations. Id. at 529.
An Administrator who determines that "procedural safeguards prescribed for inmate disciplinary hearings were not followed" is directed by N.J.A.C. 10A:4-11.5 to rescind the decision and order a new hearing. It is clear that Allah did not receive adequate procedural safeguards and we remand the decision for a new hearing.
Allah also raises an issue respecting transposition of the penalties imposed for the offense to which he pled guilty and the offense he contested, urging that he was to have received the lesser sentence on the *.009 offense in connection with the cell phone he had in his bunk. Because the record on appeal does not include any documentary evidence respecting a bargain punishment in exchange for the guilty plea, we do not directly address this issue here. However, we do observe that discipline of inmates may be individualized, taking into consideration their "history of correctional facility adjustment." N.J.A.C. 10A:4-4.1(a)(1). If the new hearing determines that the phone found in the air duct did not belong to Allah, the violation for which he pled guilty, which was later in time than the violation respecting the concealed cell phone, would be his only disciplinary charge. In that case, the DOC should determine whether this should be reflected in the extent of his punishment for the offense to which he pled guilty.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that some of Allah's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are: that he was not given an opportunity to examine the SID reports and that the reports filed by the DOC are illegible inasmuch as he now has those reports as part of the DOC's appendix and will have a new hearing.
Reversed and remanded for proceedings consistent with this opinion.