On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 17, 2008
Before Judges Cuff and Fisher.
This is a prison disciplinary appeal. Inmate Lawrence Moody is incarcerated at Mid-State Correctional Facility. He appeals from a final decision of the Department of Corrections finding him guilty of participating in an activity related to a security threat group, (*.010), in violation of N.J.A.C. 10A:4-4.1. He received the following sanction: fifteen days detention with credit for time served, ninety days loss of commutation credit, and ninety days administrative segregation, sixty days of which were suspended.
On appeal, the inmate argues that the administrative hearing process denied him his right to procedural due process because only documentary evidence was presented. He contends that prison authorities should have called the investigator, who examined a letter written by the inmate and opined that it contained gang symbols and references, so that the inmate could have cross-examined him. He also contends that the finding that he engaged in gang activities is not supported by substantial credible evidence. He concedes that counsel substitute did not request the production of any witnesses but argues that the interests of justice require us to overlook this omission. The Department of Corrections responds that this inmate received all the process he was due and that the record contains sufficient evidence to support the finding that he engaged in gang or gang-related activities.
The charge and adjudication concern a letter written by the inmate that was intercepted by prison authorities when it was returned to the sender by the postal service. The letter was submitted to an investigator who rendered a report that the letter contained symbols--a dog paw and an insignia--that are representative of the Bloods. The investigator also reported that certain phrases and abbreviations referred to a gang coalition of which the Bloods are members. This report formed the basis of the *.010 charge and was submitted at the hearing in support of the charge. Counsel substitute was assigned to Moody and argued that the alleged gang symbols were exclamation marks and smiley faces that the inmate used to emphasize a thought. He also asserted that the investigator took certain phrases and abbreviations out of context.
Our standard of review is narrow. Ordinarily, an appellate tribunal will alter the decision of an administrative agency only if it is arbitrary, capricious or unreasonable or 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). Here, we are satisfied that the letter, standing alone and without the interpretation provided by the investigator, provides sufficient evidence of gang-related activity. The letter clearly depicts dog paws and a face with two slanted eyes and a grimace rather than the exclamation marks and smiley faces asserted by the inmate.
We are also satisfied that the inmate received the process he was due. He received timely written notice of the charge, counsel substitute represented the inmate, he had the right to call witnesses and confront adverse witnesses, he received a written statement of the evidence relied on by the hearing officer and an explanation of the reasons for the sanction. Avant v. Clifford, 67 N.J. 496, 528-30 (1975). In addition, he was afforded the opportunity for further review, during which the sanction was modified.
Having identified no basis to disturb the adjudication of guilt or the sanction imposed, we affirm.
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