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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, ...