August 28, 2009
AHMAD TROWELL, APPELLANT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 August 25, 2009
Before Judges Miniman and Simonelli.
Appellant Ahmad Trowell appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing a prohibited act *.010, participating in an activity related to a Security Threat Group (STG),*fn1 in violation of N.J.A.C. 10A:4-4.1(a).
Trowell is an inmate at South Woods State Prison. He is serving a five-year sentence with a three-year period of parole ineligibility for his conviction for distribution or dispensing of a controlled dangerous substance on school property, and bail jumping.
Except to deny any affiliation to gangs, Trowell does not dispute any of the following facts adduced at the disciplinary hearing. On September 29, 2008, Senior Correction Officer Kuhlen saw Trowell in the recreation yard with a white T-shirt tied below his right knee. The officer found this significant because members of the Bloods gang usually identify themselves with items on their right side. The officer also saw Trowell directing hand signals toward the day-room, which spelled the word "Blood."
On October 3, 2008, Senior Investigator Stephen Manera of the Special Investigation Division (SID), interviewed SCO Kuhlen and established the above facts. Investigator Manera is a gang expert in the SID with extensive experience and training in recognizing and identifying STG related paraphernalia, activities, symbols, and relationships. Based upon his training and experience, he concluded that Trowell's hand signal and the T-shirt tied around his right leg indicated gang-related activities of the Bloods gang.
As a result of this incident, on September 29, 2008, Trowell was charged with *.010 participating in an activity related to a STG. On September 30, 2008, Sergeant Enwald served the charge on Trowell, conducted an investigation, concluded the charge had merit, and referred the charge to courtline for further action.
A disciplinary hearing was scheduled for October 1, 2008 and October 3, 2008, but was postponed in order to obtain an evaluation from SID. The hearing was postponed again because the hearing officer had to obtain Investigator Manera's qualifications. A hearing was held on October 6, 2008. Trowell pled not guilty and was granted the assistance of a counsel substitute. He was offered in-person confrontation of witnesses. After lengthy discussions with his counsel substitute, Trowell declined the offer. He also withdrew his request for witness names and statements.
In a written opinion, the hearing officer found Trowell guilty, stating:
Inmate pled not guilty but is found guilty. I/M [inmate] denies any gang affiliation and denies throwing any gang hand signs. The officer's charge is very credible and very specific as to what the officer saw. The officer was interviewed by a highly qualified SID investigator and confirmed that both the hand signs seen and the T-shirt tied below the knee are STG/gang signs commonly used by Blood gang members. The DHO [Departmental Hearing Officer] also recognizes these to be blood signs. The officer, Kuhlen has nothing to gain from fabricating any of the evidence.
Because Trowell was charge-free for one and one-half-years, the hearing officer granted him leniency and sanctioned him to ten days detention, with credit for time served, ninety days loss of commutation credit, and ninety days administrative segregation. The hearing officer reasoned that "[a]ny kind of gang activity, including throwing gang hand signs, needs to be discouraged and will not be tolerated."
On October 8, 2008, Trowell filed an administrative appeal, contending as follows:
I/M states that he was not making gang signs. He is not now, and never has been affiliated with any gang. This was his word against the officers and I/M Trowell should be given the benefit of the doubt. There is not substantial evidence to support the charge. I/M asks that his 90 days LOCT sanction be suspended.
On October 14, 2008, Assistant Superintendent John Powell affirmed the hearing officer's decision. This appeal followed.
Trowell contends for the first time on appeal that he was denied due process because the hearing officer postponed the hearing in order to obtain information from SID, and that the hearing officer threatened him with a lengthy sanction if he lost the confrontation with the adverse witness, thereby forcing him to forego his rights.
We will not consider questions or issues not properly presented below when an opportunity for such a presentation is available unless the questions so raised on appeal relate to jurisdiction or concern matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); see also State v. Arthur, 184 N.J. 307, 326 (2005). We also will not consider claims raised outside the record. Ibid.; R. 2:5-4. Here, the questions on appeal do not relate to jurisdiction or concern matters of great public interest.
Even if we considered Trowell's contentions, they lack merit. There is no evidence that delaying the hearing prejudiced Trowell in any way or denied him his due process rights. Also, Trowell declined the offer to confront and cross-examine adverse witnesses, and his counsel substitute signed the Adjudication of Disciplinary Charge, indicating what occurred at the hearing. There is no evidence of any threats.
A prison disciplinary proceeding "'is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.'" Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 484, 494 (1972)). However, in such proceedings prisoners have certain procedural due process rights, including a limited right to call witnesses and present documentary evidence and to confront and cross-examine witnesses where necessary "for an adequate presentation of the evidence, particularly when serious issues of credibility are involved[.]" Id. at 529-30.
Based upon our careful review of the record, we are satisfied that Trowell was afforded all due process protections required by Avant, supra, 76 N.J. at 525-33. We are also satisfied that the hearing officer's decision was based on substantial evidence that Trowell committed the prohibited act, and that the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); N.J.A.C. 10A:4-9.15(a).