On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2008
Before Judges Reisner and Sapp-Peterson.
In this prison discipline case, Timothy Conklin appeals from a final determination of the Department of Corrections (DOC) finding that Conklin committed Prohibited Act *.011 by possessing security threat group (STG) materials. See N.J.A.C. 10A:4-4.1 (prohibiting possession of STG materials). The materials were confiscated, and Conklin received fifteen days detention, 180 days loss of commutation time, and 180 days of administrative segregation. We reverse and remand for re-hearing.*fn1
Pursuant to DOC regulations, the Commissioner may designate certain groups as security threat groups, although only specially-trained DOC employees may identify inmates as members of such groups:
(a) Only the Commissioner or Deputy Commissioner shall be authorized to designate a group of inmates as a security threat group. Such designation shall be based upon reasonably sufficient evidence and information.
(b) Only the Intelligence Section of the Special Investigations Division shall be authorized to identify inmates as security threat group members and security threat group core members. Such identification shall be based upon reasonably sufficient evidence and information. [N.J.A.C. 10A:5-6.5.]
Pursuant to this regulation, on December 30, 1997, the DOC Commissioner designated the East Coast Aryan Brotherhood as a STG. On December 21, 2005, the Commissioner designated the State Prison Skinheads, or SPS, as a STG, because it was a subgroup of the East Coast Aryan Brotherhood.
On October 13, 2007, Corrections Officer Youchom confiscated literature from Conklin which the officer believed might constitute STG material. The cover page of the material, which is all that has been provided to us, was entitled "The Whole" at the top of the page, with a cross in the middle of the page, and the words "Sowilow Perthro Sowilow" at the bottom of the page. Officer Youchom forwarded the materials to the Special Investigations Division, Intelligence Section.
On October 18, 2007, Senior Investigator Matthew J. Clark, who had been trained to recognize STG materials, issued a report stating that based on his training and experience the material was related to the East Coast Aryan Brotherhood. As "justification" for his conclusion, Clark's report stated:
Use of the terms "Sowilow Pertho Sowilow" which in the runic alphabet is "SPS" which stands for "State Prison Skins[.]" The State Prison Skins are an identified Security Threat Group.
According to an investigation report prepared by investigator T. Ray, Conklin pled not guilty to the charge, and stated "that he is SPS and that they have nothing to do with East Coast Aryan Brotherhood." However, at his courtline hearing Conklin explained that the wording on the ...