October 3, 2008
MICHAEL AMMEAN, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 27, 2008
Before Judges C.L. Miniman and Lihotz.
Appellant Michael Ammean appeals from the final agency action of the Southern State Correctional Facility adjudicating him guilty of institutional infraction *.202, possession of a weapon. He asserts that the record does not contain any substantial evidence supporting this adjudication, which he seeks to have vacated. We affirm.
On April 28, 2007, at 5:10 p.m. Corrections Officer Recruit K. Maggio was performing routine bed-area searches when he "found a weapon which was a modified pen with a screw sticking out of one end. The weapon was found inside [Ammean's] locked wall locker on [the] bottom shelf under brown storage envelopes with papers in them." The investigator, Sergeant Flickinger, who interviewed three inmate witnesses, indicated in his report that inmates are responsible to keep their lockers locked. Ammean was served with the charge of institutional infraction *.202, his first disciplinary charge in almost three years, on April 29, 2007, at 4:50 p.m.
The first hearing scheduled for April 30, 2007, was adjourned at the request of Ammean's counsel substitute in order to prepare the case for the hearing. The second hearing scheduled for May 3, 2007, was adjourned to obtain a photograph of the weapon. The hearing was conducted on May 7, 2007.
Maggio testified at the hearing and various documents were marked into evidence on behalf of the institution: A1, Authorization for Pre-hearing Detention; A3, Seizure of Contraband Report; A4, Inmate Receipt, Contraband Report; A5, photocopy of weapon; A6, Special Report for Lock-up Exam; A7, Hold Slip; A8, hearing officer's request for clear copies or photographs of the weapon; and A10, two copies of weapon laid beside a ruler.
Ammean then gave the following statement:
[Y]ou can see that they are two different things but looks like 2 different weapons[.] I been down 7 years[.] I know not to have anything in locker[.] I've had GM for over a year and charge free[,] not even OTS here[.] I have no problems with anyone but[,] when I did have a problem[,] I went to officer and asked to be sep[a]rated[.] I am hoping you can see that someone threw this in my locker[.] I usually keep it locke[d. I]t only takes a second to throw something in there when I go to the shower or outside[. R]equests consider record[.
S]omeone set me up[.] I've had a couple bunkies that have never been moved off unit but they were moved away from me[. T]hat is all I can think of[.] I want to keep my status[.]
Ammean declined to call any witnesses, relying on the three witness statements obtained from Scott Finestone, Angel Vargas and Brian Quattrochi as a result of the investigation into the *.202 infraction. Those statements were marked as D1 to D3, respectively. Vargas merely wrote in his statement that he had no statement to make. Quattrochi stated that Ammean never caused any trouble and that someone must have put the weapon in his locker because he was about to go home. Finestone was more elaborate:
On 4/30/07 Ammean #433822 & myself were out in the big yard at about 6:15 p.m.
[T]he compound Sgt[.] came to the fence & called Ammean out. There was a few issues that happen earlier in the week that concerned me[,] Scott Finestone[,] that caused a few verbal arguments [sic] among myself & Ammean. My op[in]ion is that there was a "slip dropped & a shank placed in Ammean's area[.]" This also caused my area to be searched as well. I've known Ammean for 25 years before we were ever ever put in prison[.] We grew up together. If this man had a shank I would have known[.] I can't stress that statement enough! And, I am positive this was not in his area before we left for the yard. Ammean is only guilty of leaveing [sic] his locker open & letting something like this happen!!! I packed his property & it didn't look like this wepon [sic] was too hard to find considering his stuff was barely touched which leads [me] to believe this wepon [sic] was in plain view.
Ammean did not request confrontation with any adverse witnesses. His counsel substitute argued that the Captain and SID were conducting an ongoing investigation and they might have reason to believe that Ammean was set up. He also argued that Ammean had been an exceptional trustworthy inmate and that, given his time in the system, he would have known better than to have an object like that in his locker.
Hearing Officer Kathy Ireland relied on Maggio's testimony and documents A2 through A5 and A10, specifically finding that the weapons shown in A5 and both copies of A10 were the same weapon. She found Ammean guilty of *.202 and imposed fifteen days of detention, 180 days loss of commutation time, 180 days of administrative segregation, and confiscation of the weapon. She gave no consideration to the fact that his last charge was in June of 2004 because of the possible injury to others from the weapon.
Ammean immediately appealed to Bartkowski and his counsel substitute entered a plea of leniency, arguing that Ammean had a positive adjustment to prison without institutional infractions or charges and with reduced custody. He further argued that Ammean had no reason to possess a weapon and that someone planted it in his locker. He sought a suspension of the sanction because Ammean had an exceptional institution record. Bartkowski modified the hearing officer's decision by reducing both the loss of commutation time and administrative segregation from 180 to ninety days each. He explained, "Although you have a decent disciplinary history here[,] it is your responsibility to lock your locker at all times." This appeal followed:
Ammean does not assert that he was deprived of his right to institutional due process as first articulated by Avant v. Clifford, 67 N.J. 496, 525-30, 533 (1975), and secured by current regulations that "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald v. Pinchak, 139 N.J. 188, 202 (1995). Rather, he asserts that "Substantial Evidence was not found during Appellant's Court Line Hearing or subsequent Administrative Appeal."
The scope of our review of an agency decision is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Service, 39 N.J. 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). Indeed, the applicable departmental regulation requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a); see also Avant, supra, 67 N.J. at 530 (requiring substantial evidence to support inmate sanction).
Although our review is limited, "our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). "Our role is to engage in a 'careful and principled consideration of the agency record and findings.'" DeCamp v. Dep't of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (citing Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry, supra, 81 N.J. at 579-80).
Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956); see also In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961); Mead Johnson & Co. v. Borough of S. Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967). "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 126 N.J. 323 (1990).
Ammean argues that no one saw Maggio find the weapon in his locker and, thus, his testimony was unsubstantiated yet the hearing officer did not explain why she credited Maggio but did not credit Ammean's denial that he possessed the weapon and that someone planted the knife in his locker. He points out that there was no evidence that he needed a weapon to protect himself. He contends that no reasonable person would accept the evidence as adequate to support the conclusion that he possessed a weapon. He further contends for the first time on appeal that the hearing officer should have ordered a lie detector test to aid in deciding the credibility of Maggio and himself.
Ammean also contends that the hearing officer was simply wrong in finding that only one weapon was photocopied and entered into evidence. He argues that she failed to question why the weapon was found in such an easy location to detect, contending that he would never had hidden a weapon in his locker. He urges that common sense would dictate that an inmate would not hide a weapon in such a place and urges that in a dormitory setting it would have been easy for someone to have planted the weapon in his locker. Finally, he asserts that the hearing officer never considered his gang-minimum status and the fact that he worked seven days per week to earn eleven days off his sentence per month.
The hearing officer was entitled to credit the testimony of Maggio, whom Ammean elected not to cross-examine. The record reflects that Maggio was performing a routine bed-area search. There is no evidence that Maggio or any other corrections officer had a dispute with Ammean, from which one might infer that prison personnel were trying to sabotage his disciplinary record. Indeed, Ammean's three years of good behavior and his work effort would clearly suggest that no corrections officer would have planted the weapon in his locker.
As to the claim that the weapon was planted, the hearing officer pointed out that it was recovered from Ammean's locked locker, from which it is entirely reasonable to infer to Ammean possessed the weapon. Ammean did not dispute that it was his responsibility to keep his locker locked and he did not testify to an occasion when he failed to do so, nor did he identify another inmate who had access to his locker when he left it unlocked. Thus, Ammean's claim that the weapon was planted was unsubstantiated and a reasonable person could conclude that his claim was not credible.
Regarding Ammean's prison record, in another setting it might be offered to raise a reasonable doubt as to guilt, but the constitutional right to proof beyond a reasonable doubt has not been extended by our Supreme Court to a prison setting. As a consequence, the hearing officer could have reasonably concluded that Ammean's record was not necessarily inconsistent with possession of a weapon, especially one found in his locked locker.
With respect to the claim that the hearing officer should have requested a polygraph, this issue was not raised with the hearing officer.
It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." [Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]
As a consequence, we do not consider this issue on appeal.
From a review of all of the evidence, we conclude that the agency's final decision was supported by substantial evidence, even though we might have reached a different result were we the trier of fact.
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