July 14, 2009
DIMPY PATEL, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 May 4, 2009
Before Judges Sapp-Peterson and Alvarez.
Dimpy Patel is an inmate serving a life sentence at New Jersey State Prison (NJSP) in Trenton. He appeals from the final administrative decision of the Department of Corrections (DOC) finding him guilty of seven disciplinary infractions, all violations of N.J.A.C. 10A:4-4.1: *.803/*.009, attempting to misuse or possess electronic equipment not authorized for use or retention by an inmate such as, but not limited to, a cellular telephone(s), two-way radio(s), other communication device(s) and/or computer(s) and/or related device(s) and peripheral(s); *.306, conduct which disrupts or interferes with institutional security; .754, giving money or anything of value to, or accepting money or anything of value from, a member of another inmate's family or another inmate's friend with an intent to circumvent any correctional facility or departmental rule, regulation or policy or with an intent to further an illegal or improper purpose; .705, commencing or operating a business or group for profit or commencing or operating a non-profit enterprise without the approval of the Administrator; .753, purchasing anything on credit; and .752, giving money or anything of value to, or accepting money or anything of value from another inmate. We affirm.
The guilty adjudications on all of the infractions stemmed from Patel's major involvement in a large conspiracy to obtain contraband through compromised NJSP employees. The contraband at issue included drugs and cell phones. Additionally, the conspiracy involved money laundering. As a result of the finding of guilt on the charges, Patel received sanctions that included the permanent loss of contact visitation privileges, a two-year, nine-month period of administrative segregation, a three-year, one-month loss of telephone privileges, a two-year, six-month loss of commutation time, and 30 days detention. On a second .754 infraction, Patel received an additional ninety-day period of administrative segregation, a thirty-day loss of telephone privileges, and a sixty-day loss of commutation time.
On appeal, Patel raises the following points for our consideration.
NO. 360669 AND NO. 361251 WERE FATALLY MULTIPLICITOUS[,] REQUIRING EITHER AN AMENDMENT TO COMBINE SPECIFIC CHARGES OR A MERGER OF THOSE CHARGES FOR SANCTION IMPOSITION PURPOSES.
THE PUNISHMENT OF LOSS OF MONITORED TELEPHONE PRIVILEGES FOR AN AGGREGATE PERIOD OF THREE YEARS AND THREE MONTHS IS DISPROPORTIONATE TO THE CONDUCT.
i. THE SANCTION VIOLATES THE PRINCIPLE OF PROPORTIONALITY.
ii. THIS COURT MUST REVERSE.
THIS COURT MUST REQUIRE THAT RESPONDENT INSTITUTE A YARBOUGH SENTENCING STRUCTURE.
Additionally, in his pro se supplemental brief, Patel raises the following points for our consideration.
THE DECISION OF THE HEARING OFFICER WAS NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE THAT APPELLANT COMMITTED A PROHIBITED ACT AND AS SUCH IT CLEARLY VIOLATES APPELLANT'S RIGHT TO DUE PROCESS AND IN THE INTEREST OF JUSTICE SHOULD BE VACATED.
BECAUSE THERE WAS NO SUMMARY OR QUALIFICATION OF THE CONFIDENTIAL INFORMANTS PROVIDED TO APPELLANT OR HOW THEY WERE DETERMINED TO BE CREDIBLE BY THE HEARING OFFICER PURSUANT TO N.J.A.C. 10A:4-9.15(b)(1) OR WHETHER THE INFORMATION PROVIDED WAS FROM PERSONAL KNOWLEDGE[,] THE ADJUDICATION ON ALL CHARGES SHOULD BE REVERSED.
THE HEARING OFFICER ERRED BY THE REFUSAL TO MAKE THE RECORDED PHONE CONVERSATION OF APPELLANT[,] WHICH WAS NOT CONFIDENTIAL[,] AVAILABLE TO BE PLAYED AT THE HEARING IN SUPPORT OF APPELLANT'S DEFENSE.
After carefully reviewing the record, we are satisfied that Patel's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). The final administrative decision issued by the DOC is supported by substantial, credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We add only the following.
N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry, supra, 81 N.J. at 579-80.
In Avant, supra, the court recognized that prison disciplinary hearings are not analogous to criminal prosecutions. 67 N.J. at 522 (citing Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 484, 494 (1972)). Hence, the full panoply of rights afforded to an accused in a criminal prosecution is not extended to inmates facing prison disciplinary charges. Ibid. Nonetheless, the court made clear that inmates are not stripped of all procedural due process by virtue of their incarcerated status and expressly defined those rights to which inmates are entitled with respect to disciplinary infractions.
The record demonstrates that the requisite procedural due process was afforded to Patel, although he declined to avail himself of all of the rights. He received timely notice of the charges. The hearing officer was not a member of the NJSP staff. Patel did not choose to call witnesses on his behalf.
However, he did, as to some of the charges, personally make a statement, or a statement was made on his behalf by counsel substitute, who was also provided to him due to the notice of the charge. Other than Investigator Dolce, Patel declined an opportunity to confront adverse witnesses. Dolce was only cross-examined on the .752 charge.
The fact that the hearing officer provided summaries of the taped conversations in which Patel was a participant, rather than playing the full audiotapes during the hearing, does not implicate any due process violations. Neither Patel nor his counsel substitute requested that Patel be afforded an opportunity to review the tapes.
Patel next claims that the sanctions imposed were disproportionate to the disciplinary infractions for which he was found guilty. We disagree. First, there was substantial credible evidence in the record to support Patel's adjudication of guilt on the disciplinary charges. The investigation included information from two confidential informants who had provided reliable information to DOC officials in the past. Additionally, there were taped telephone conversations between Patel and others during which Patel gave specific instructions related to a brokerage account and the transmission of funds to finance the purchase and delivery of contraband through compromised NJSP staff.
Second, all of the sanctions imposed were between the range of sanctions that may be imposed for the various disciplinary infractions. Patel's reliance upon State v. Yarbough, 100 N.J. 625, 635 (1985), to advance the argument that a sentencing structure should be imposed in prison disciplinary infraction cases is misplaced. As the court observed in Avant, supra, 67 N.J. at 522, prison disciplinary proceedings are not criminal in nature. 67 N.J. at 522 (citing Morrissey, supra, 408 U.S. at 480, 92 S.Ct. at 2600, 33 L.Ed. 2d at 494).
Likewise, his contention that the sanctions imposed "terminate all personal contact" between him and his family is incorrect. The sanctions imposed permanently terminated Patel's physical contact with his family. There was, however, no permanent loss of visitation, albeit window visitation. Given the extent of Patel's involvement in the activities for which he was found guilty and the impact of those activities upon prison security, the sanctions imposed were proportionate to the offenses. In re License Issued to Zahl, 186 N.J. 341, 353-54 (2006).
The remaining arguments advanced by Patel are without sufficient merit to warrant any discussions in a written opinion. R. 2:11-3(e)(D) and (E).
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