July 22, 2009
CRAIG REID, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal From a Final Administrative Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2009
Before Judges A. A. Rodríguez and Payne.
Craig Reid, an inmate at New Jersey State Prison, has appealed from an adjudication, affirmed on administrative appeal, finding him guilty of disciplinary infraction *009, unauthorized possession of a cell phone, N.J.A.C. 10A:4-4.1, and from the imposition of sanctions consisting of fifteen days of detention, with credit for time served, 365 days of administrative segregation, 365 days of loss of commutation credit, one year loss of phone privileges, and permanent loss of contact visits under the Department of Corrections' "zero-tolerance" policy.
On further appeal from the final decision of the Department of Corrections, Reid makes the following arguments:
APPELLANT WAS DENIED DUE PROCESS DURING THE AGENCY HEARING BY BEING HELD IN DETENTION LONGER THAN THE CODE PERMITS.
THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL EVIDENCE, IN VIOLATION OF THE CODE.
After considering Reid's arguments in light of the record and applicable precedent, we affirm.
The following facts appear from the record on appeal. On February 7, 2008, Reid was interviewed by Senior Investigator R. Doron of the Special Investigations Division of the New Jersey State Prison, who sought information regarding a cell phone confiscated from another inmate with the last name of Burgos.
Reid refused to cooperate, and on February 8, 2008 he was charged with having committed a *009 offense.
Reid was assigned a counsel substitute, and on February 11, 2008, he pled not guilty to the charge. Further hearings in the matter were delayed until March 3, 2008 because of the hearing officer's need to review and summarize the extensive investigatory materials relating to the matter. During the period from February 7 to March 3, Reid remained in disciplinary detention, although administrative regulations limited such period to fifteen days. See N.J.A.C. 10A:4-5.3, which provides:
(a) All disciplinary charges pending when the inmate begins serving time in Disciplinary Detention must be adjudicated prior to the completion of the inmate's Disciplinary Detention time. No inmate may receive more than 15 days in Disciplinary Detention as a result of a single disciplinary charge except as established in N.J.A.C. 10A:4-6, Chronic violator.
At the March 3 hearing, Reid declined to testify or to call witnesses on his behalf. Counsel substitute argued that the charges should be dismissed as the result of the violation of N.J.A.C. 10A:4-5.3. The hearing officer disagreed, citing a provision regarding failure to adhere to time limits, found in another subchapter of the Code at N.J.A.C. 10A:4-9.9. That provision states:
(a) The failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge. However, the Disciplinary Hearing Officer . . . may, in its discretion, dismiss a disciplinary charge because of a violation of time limits. Such discretion shall be guided by the following factors:
1. The length of the delay;
2. The reason for the delay;
3. Prejudices [sic] to the inmate in preparing his/her defense; and
4. The seriousness of the alleged infraction.
Utilizing that standard, the hearing officer found that Reid had not been prejudiced by the delay and declined to dismiss the charges against him.
At the conclusion of the hearing, the hearing officer prepared a handwritten adjudication of guilt, supplemented with a detailed typewritten summary of his findings. Among the information upon which the hearing officer relied was a videotaped interview with a confidential informant, who stated that he/she had first-hand knowledge that inmates Siaca and Reid had possessed and utilized cell phones while confined to the prison. The informant stated that a "compromised employee" of the prison, later identified as a woman named Sexton, had smuggled the phones into the prison and delivered them to inmates King and Reid. Reid's phone number was 851-7515; King's was 858-8219. The informant stated that, at some point, Reid had given his cell phone to Burgos, from whom it was confiscated. While still in his possession, Reid had used the phone to call Sexton in the clinic area.
The phone confiscated from Burgos had the number 858-8219. Subpoenaed telephone records disclosed that the phone's owner was Craig Reid, with an address of [number omitted] Chestnut Avenue, Trenton, NJ 08611. The list of call numbers included the telephone listings for many of those people who had been set forth by Reid on his prison authorized call list, including Reid's parents.
Additionally, intercepts of telephone calls by Sexton, principally to King, confirmed that Sexton had obtained a cell phone with the number 851-7515 and had delivered it to an inmate named Craig. Although a last name was not supplied, it can be inferred that the recipient was Reid. A second phone had been given by Sexton to King, with whom she had a romantic relationship.
Our review of the record satisfies us that the hearing officer's determination that Reid was guilty of a *009 offense was supported by substantial evidence in the record. N.J.A.C. 10A:4-9.15(a); Jacobs v. Stephens, 139 N.J. 212, 222 (1995); In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). In this regard, we reject Reid's challenge to the statement of the confidential informant as conclusory and lacking a stated factual basis. Although the informant did not describe the circumstances that led to his/her knowledge of what had occurred, sufficient independent corroborative detail was provided through subpoenaed records and telephone intercepts to provide grounds for the hearing officer's conclusion that the information supplied by the informant was reliable.
We also reject Reid's challenge premised on the Department of Correction's violation of N.J.A.C. 10A:4-5.3 when it held Reid in disciplinary detention for a period greater than fifteen days without conducting his disciplinary hearing. We agree with Reid that N.J.A.C. 10A:4-9.9, providing that a violation of time limits does not require dismissal of a disciplinary charge, is inapplicable to the present situation because it applies, by its terms, only to Subchapter 9, Disciplinary Procedures, and the time limits set forth therein.
However, we find little support for the argument that failure to adhere to the time limits of N.J.A.C. 10A:4-5.3 constitutes a due process violation requiring dismissal of the pending disciplinary charge. Because that provision appears in Subchapter 5, Schedule of Sanctions for Prohibited Acts, and the regulation in question is entitled "Limitation on Sanctions" we interpret the limitation as requiring the return of an inmate to a less restrictive confinement than that provided by disciplinary detention, once the fifteen-day period has elapsed if, in fact, a hearing cannot be held expeditiously. Otherwise, the regulation cannot be reconciled with Subchapter 9, permitting adjournment of hearings to allow further investigation. Such a remedy did not occur in this case despite Reid's request that his "illegal housing be remedied." Nonetheless, we do not find the absence of a remedy in this regard as sufficient grounds to warrant reversal of Reid's factually well-founded discipline. Due process concerns were not implicated in this regard.
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