April 7, 2009
ABDUL-WALI SALEEM, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Administrative Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges A. A. Rodríguez and Payne.
Defendant, Abdul-Wali Saleem, was charged, on April 28, 2007, with offenses occurring the prior day, consisting of *.004 (fighting) and.502 (interfering with the taking of the count). See N.J.A.C. 10A:4-4.1. A hearing took place, at which time defendant's alleged victim recanted his charge of having been punched and defendant denied fighting, but admitted to yelling loudly at the alleged victim, whom he accused of failing to shower. At the conclusion of the hearing, the hearing examiner found defendant not guilty of fighting and, changing the.502 charge to.709 (failure to comply with a written rule or regulation of the correctional facility), found defendant guilty of the substituted charge. Defendant was not informed at any point of the rule or regulation that he had violated. Defendant was given fifteen days of detention, sixty days of lost commutation time, and 90 days of administrative segregation. The adjudication and sanction were affirmed on appeal to the Department of Corrections.
Defendant appealed to us. However, while the appeal was pending, the State moved for a remand. The motion was granted, and a second hearing was conducted. We find no evidence in the record that would indicate that defendant was informed, prior to the hearing, what charge defendant would face at the rehearing. In fact, it appears from the adjudication form that the only charges served upon defendant were the initial *.004 and.502 charges, served on April 28, 2007, one day after the incident at issue. Further, there is no evidence in the record that would suggest that defendant, if charged with.709, was informed of the rules or regulations that he was alleged to have violated. No plea was entered.
At the rehearing, defendant again admitted to a loud verbal argument. The State, in turn, introduced in evidence an inmate handbook, which, in a section titled "Code of Conduct," stated:
6. Loud calling, yelling, noisy behavior, whistling or hollering is prohibited within the institution.
26. Sparring, body punching, etc. will not be permitted in this institution.
30. Fighting shall result in disciplinary action. Avoid any type of situation that might develop into a fight.
Defendant was again found guilty of the.709 charge, and he was again sanctioned to fifteen days of detention and ninety days of administrative segregation. However, his loss of commutation time was reduced to sixty days. The hearing officer summarized the evidence presented as follows:
Saleem enters no plea to violating any rule/regulation. Per staff reports I/M Saleem and I/M Hudson 56228 were observed fighting. Saleem states "It was a verbal argument." Per I/M Hudson (D2) "There was no fight just a lot of loud yelling.: Medical reports (A6) indicate no injuries. Per code of conduct from I/M handbook pg 65 #6 "Loud calling, yelling, noisy behavior or hollering is prohibited. Pg 66 #26 and #30 refer to body punching and fighting. Staff reports and I/M's orig. statement support Saleem did violate rules & regulations of the facility. Staff reports indicate both I/M's stopped their actions once they observed and heard officers order to stop. Charge upheld.
As the reason for sanctions, the hearing officer stated:
To encourage s/to [sic] comply with rules and regulations staff indicates it was a physical fight. Both I/M's state it was verbal arguments can develop into a physical altercation. This type of behavior is not to be minimized and is clearly a violation of the rules and regulations.
Defendant's appeal to the Department of Corrections was denied.
In a pro se brief in support of his appeal, filed prior to the remand, defendant presented the following arguments:
I SHOULD NOT HAVE BEEN FOUND GUILTY OF THE.709 DISCIPLINARY REPORT.
AT WORST I COULD HAVE BEEN FOUND GUILTY OF AN ON THE SPOT INFRACTION.
We do not address defendant's substantive arguments at this time, because we find, despite the remand for a rehearing that the State requested, that defendant continues to be denied procedural due process in this matter. Avant v. Clifford requires in this regard that defendant be provided with written notice of the charges against him, so that he is able marshal the facts and prepare a defense prior to his disciplinary hearing. 67 N.J. 496, 525 (1975); see also N.J.A.C. 10A:4-9.2. At no time prior to the first disciplinary hearing in this matter, was defendant informed of the.709 charge or of the identity of the allegedly violated rules or regulations.*fn1
Further, there is no evidence that, at the hearing, defendant was informed of the substituted charge against him. The only mention of that charge appears in the hearing officer's adjudication, and even there, the rules or regulations that defendant was found to have violated were not specified.
Upon remand, while defendant's appeal was pending, the same procedural defects existed. As we have stated, the only charges of which defendant had received formal notification were those set forth on the initial April 28, 2007 notice. Moreover, nothing in the record suggests that the State disclosed to defendant either that, upon remand, a new hearing would be conducted, or that it specified the charge to be heard. Even if defendant could be presumed to have recognized that the subject of the rehearing was the.709 charge, he still lacked notice of the rules or regulations that he was claimed to have violated.
In these circumstances, we are satisfied that the constitutional dictates of the Due Process Clause have not been met in this matter. Defendant's adjudication is therefore vacated, and the matter is remanded for further proceedings in accordance with this opinion. Any rehearing shall occur, upon proper notice, within ninety days of the issuance of this opinion.
Reversed and remanded. Jurisdiction is not retained.