May 4, 2009
CORINNE CONNOLLY, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2009
Before Judges Lisa and Reisner.
Corinne Connolly, an inmate at the Edna Mahan Correctional Facility, appeals from a January 11, 2008 final decision of the Department of Corrections (DOC), finding that she committed prohibited act *.011, possessing or exhibiting materials related to a security threat group (STG). See N.J.A.C. 10A:4-4.1 (prohibiting possession of STG materials). The inmate was sanctioned with 10 days of detention, 60 days of administrative segregation which penalty was suspended, and 120 days loss of commutation time. We affirm.
Connolly is serving a ten-year sentence for carjacking and burglary. On December 31, 2007, corrections officers seized from Connolly's cell five drawings which they contended contained symbols associated with an STG known as the Aryan Brotherhood. The drawings include pictures of viking figures, a flaming skull surrounded by the words "Irish Pride," a celtic cross, and a depiction of an arm tattooed with "F.T.W." and holding a globe of the world in its fist.
The drawings were sent to the agency's Special Investigations Division for review by an officer with expert credentials in identifying STG materials. See N.J.A.C. 10A:5-6.4(a). According to the officer's report, Connolly was "an identified member of the East Coast Aryan Brotherhood." The report concluded that four of the five drawings were "typical of Aryan members['] use of [Odinic] religious symbolism in an attempt to mask underlying meaning relating to hate literature." Specifically, the report indicated that the viking drawing included rune symbols, which were "a know[n] choice of writing amongst Aryan members." The "Irish Pride" drawing was "symbolic of the pride Aryan members have with their Irish [ancestry.]" The celtic cross drawing contained a "Shield Knot . . . formed by intersecting Swastikas; a common hate symbol used by Aryans." The expert also opined that the "hand holding a globe with the letters 'F.T.W.'" was also an Aryan Brotherhood sign. He explained that "F.T.W" was shorthand for "Fuck The World," a slogan used by the Aryan Brotherhood.
At her administrative hearing, Connolly declined the opportunity to confront adverse witnesses. She claimed that she did not belong to the Aryan Brotherhood, that none of the materials bore any relationship to the Aryan Brotherhood, and that most of the materials were associated with her religion of Odinism. In a written statement submitted in advance of the hearing, she contended that "F.T.W." was merely "a rebellious slogan." The hearing officer credited the evidence presented by the prosecution and did not credit the inmate's testimony.
Connolly appealed the adjudication to the prison administrator. The administrator upheld the adjudication, but reduced the administrative segregation from 120 days to 60 days suspended. This appeal followed.
On September 12, 2008, we granted the agency's motion for a temporary remand to permit the agency to consider a psychological evaluation of the inmate, as it might bear upon her level of responsibility for her actions and the possible impact of placement in administrative segregation. The agency's consideration of this report did not change its adjudication on the merits of the charge, and the supplemental psychological report is not at issue on this appeal. After a rehearing which included consideration of the psychological report, the agency issued a supplemental decision dated November 25, 2008, reaffirming its conclusion that Connolly possessed STG materials.
In the November 25, 2008 rehearing decision, the hearing officer again credited the security expert's report. He further noted that the inmate's claim that she did not understand the proceedings was not credible in view of her intelligence and relatively high level of education. The hearing officer rejected the inmate's claim that the materials were religious in nature as opposed to STG-related, and noted he was "not aware of any religion that considers the phrase F.T.W. as one of their creeds."
On this appeal, Connolly raises the following issues:
POINT I: THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUSTAIN A FINDING OF GUILTY.
A. Scope Of Review
B. No findings Of Fact By H.O. Or Administrator
POINT II: APPELLANT WAS NOT GIVEN PROPER NOTIFICATION OF THE RULES ALLEGED TO HAVE BEEN VIOLATED.
POINT III: BECAUSE APPELLANT HAS RAISED ISSUES OF A CONSTITUTIONAL DIMENSION, THE RESPONDENT MUST SATISFY THE BURDEN OF PROVING HARMLESS ERROR BEYOND A REASONABLE DOUBT.
A. In Order To Clarify The Religious Issues, Appellant Requests Judicial Notice Pursuant to N.J.R.E. 202(b).
D. Celtic Cross.
E. The Swastika.
F. Other Symbols.
Having reviewed the record, we conclude that except as discussed below, these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Pursuant to DOC regulations, the Commissioner may designate certain groups as security threat groups (STG), 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.]
There is no dispute on this record that the Aryan Brotherhood is a duly designated STG. The issue is whether the materials found in Connolly's cell relate to that STG. Our review of the agency's decision on that issue is limited. In reviewing the DOC decision, we will defer to the agency's conclusions so long as the decision is not arbitrary or capricious and is supported by substantial credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Moreover, so long as the agency provides a sufficient explanation for its conclusions, we will defer to the agency's expertise in "determining whether prison materials are gang related." Balagun v. N.J. Dep't of Corrections, 361 N.J. Super. 199, 202 (App. Div. 2003). Judged by that standard, we find no basis to disturb the agency's decision here.
First, it is clear from materials in Connolly's appendix that the DOC has adopted detailed guidelines recognizing the religion of Odinism and its practices. In her appendix, Connolly has also included a February 20, 2007 memorandum directed to her from the prison chaplain advising Connolly of the materials "authorized for religious practice of Odinism."*fn1
None of the materials found in Connolly's cell were included on the list of permitted religious materials in the memo.
The security expert provided a specific explanation as to why the materials were STG-related, and the hearing officer's decision was based on credibility determinations for which he likewise provided a sufficient explanation. We owe particular deference to the agency's credibility determinations, where its hearing officer had the opportunity to observe the inmate's testimony. See State v. Locurto, 157 N.J. 463, 470-74 (1999). We find no basis to reject the hearing officer's factual conclusion that the materials were STG-related and not religious in nature. Moreover, with respect to the image with the "F.T.W" slogan, Connolly does not even claim that this material related to her religion. In summary, the agency's decision is supported by substantial credible evidence and is affirmed.