May 19, 2009
ALCEDES SANTORI, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2009
Before Judges Skillman and Graves.
Alcedes Santori, a state prison inmate, appeals from a final administrative decision by the Department of Corrections (DOC), imposing disciplinary sanctions for committing two disciplinary offenses: (1) attempting to obtain a cell phone, in violation of prohibited acts *.803 and *.009; and (2) attempting to obtain drugs, in violation of *.803 and *.203. Because the final DOC decision is not supported by substantial credible evidence, we reverse.
On October 27, 2007, Sergeant Kakos, who was assigned to the mailroom at the East Jersey State Prison (EJSP), determined that an inmate's name and number on a letter being sent to "Cristy Concepcion" was "bogus." In an effort to identify the actual sender, Kakos opened the envelope and read the letter. According to Kakos, the letter stated "that someone was going to kill someone," drugs were going to be "brought into the jail on a visit," and "a cell phone also would be brought in." For reasons that are not clear from the record, the Special Investigations Division (SID) determined the letter was written by inmate Allen Rivera, who was Santori's cellmate, and it concluded "Santori was a participant in Rivera's efforts to bring contraband into the prison."
We requested a typed version of the letter that was intercepted by Sergeant Kakos, because the original handwritten letter was illegible. The typed version of the letter, in its entirety, reads as follows:
May the almighty father bless and protect you and the kids with the gift of happiness and try and may he bless your foot steps and may all things be at your favor.
First and foremost I love you also I'm sorry to hear the new's with what your dealing with at this point of time but you're a fighter and I know we will over come this. Just like you said that you will (illegible) her and I am with you (illegible) but that did get me a little stressed out because is just the thought of hearing someone you love is going through so much pain stress and at time's struggle's listen there is a lot to talk about now. I want you to come see me (illegible) visit list hear is his name and number Alcedes Santori 624482B (illegible) now I got brenda in my list. Come up with her and let her know I am not mad or upset with her is that I was being moved and I had things on my mind but that she is still mines and I (illegible) her as much hug's and kiss's that are possible. Christy there are things we need to talk about also we are going to have to help each other. (illegible) I need to get myself attorney and place to many thing's are going around more with gang situation going on I need to get home (illegible) if you can call Franky tell him that I am ready I put some thing together (illegible) balloon once you get (illegible) tell him you have what you have to do next. No need to worry also no need to be scared as if (illegible) don't want to I understand but than I am going to (illegible) you find some one if ask you could (illegible) find (illegible) that bitch is going to listen and the (illegible) that comes through I also (illegible) going to also going to need you to bring (illegible) the smallest phone there is with the changes (illegible) is (illegible) put it as egg (illegible) again. I'll pay for it then you send it to the address I ask you to then I'll get it an[d] will be able to talk better that (illegible) don't page. No mind to the name and number that is on the (illegible) is made up (illegible) are the same but write me to my info if you could be at Mom's house so we could talk by Tuesday night around 7:00 to 7:30 here is franky's number tell him I'm ready 856-366-7081 if that's not the number call Vic ok tell franky I'd listen you can't come up til 10/27/07 or 10/28/07 if you can find out with mom what day she is coming up so that you can come up the next day but call brenda so she can get ready and come up with an excuse ok love you twin and wish you the best. Love you.
Te Amo P.S. give kid's hug's and kisses When Santori was served with the charges on November 6, 2007, he was informed that inmate Rivera had been identified "as the author of the letter." Santori was also advised that Rivera's letter "details Christy on how to obtain drugs and a cell phone in order to have them introduced into EJSP." Santori was further notified that disciplinary charges were filed against him because Rivera's letter mentioned that Santori was going to place Christy's name on his visit card in order to help Rivera smuggle contraband into the prison.
The hearing officer's findings regarding the cell phone charges were as follows:
A letter was rec'd via mailroom, the return name/number was check to determine if it belong to a real person, the name number was not in the system, the letter was open, it was learned that the letter was mailed to a person on this I/M visit card. There is only one other person who has this person on their visit card, his roommate who is also a family member. This I/M was writing a letter trying to obtain a phone which is against the rule, all relied on to determine guilt
The hearing officer made similar findings regarding the drug charges:
A letter was rec'd via mailroom, the return name/number was checked to determine if it belong to a real person. The name/number was not in the system, the letter was open it was learned that the letter was mailed to a person on this I/M's visit card there is only one other person who has this person on their visit card, His roommate who is also a family member this I/M was writing a letter trying to obtain drugs which is against the rule's all relied on to determine guilt
In his administrative appeal, Santori argued there was no evidence he wrote the letter that resulted in the charges against him and there was no evidence that he attempted to obtain a cellular phone or drugs. On appeal to this court, Santori contends:
[T]he evidence proffered by the Respondent Department of Corrections was insufficient to support a finding of guilt that the appellant attempted to introduce a cellular phone and drugs into the facility. In the first instance, there is no evidence that the appellant was the author of the incriminating letter. He vehemently denied writing it.
There must be "substantial evidence" to support a finding of guilt at a disciplinary hearing. Avant v. Clifford, 67 N.J. 496, 530 (1975); N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). In the present matter, we conclude that the administrative record is insufficient to support the findings of guilt for the following reasons: (1) the DOC has always maintained that the incriminating letter was written by inmate Rivera, and there is no evidence to support the hearing officer's determination that Santori authored the letter; (2) the typed version of the letter makes no reference whatsoever to drugs; and (3) there is no direct evidence that Santori was involved in a contraband smuggling plot with Rivera. Under these circumstances, the record before us is insufficient to sustain the final DOC decision. The adjudications are therefore reversed.
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