On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Lihotz and Ashrafi.
Inmate Justina Cammarata appeals sanctions imposed upon her by the Department of Corrections for possession of more than $50 in cash while she was serving part of her sentence at a halfway house. We affirm.
On May 25, 2007, Cammarata was sentenced in the Superior Court to a term of four years' imprisonment for possession of illegal drugs, forgery, theft, and assault. In October 2008, she was serving her sentence at the Kintock II Halfway House in Newark on a community release program. She was aware of a rule of the halfway house that residents may not possess more than $50 in cash.
On October 4, 2008, after her mother visited at the halfway house, Cammarata was searched and $1,100 in twenty dollar bills was found hidden in her bra. The cash was confiscated and Cammarata was charged with a violation of Prohibited Act *.207, possession of unauthorized currency. N.J.A.C. 10A:4-4.1(a). At a disciplinary hearing conducted on October 7 and 9, 2008, Cammarata pleaded guilty to the charge, explaining that the money came from her own account and that she intended to use it to buy a birthday present for her mother and to pay bills. The hearing officer recommended sanctions of ten days' detention, ninety days' loss of commutation time, confiscation of the $1,100, and referral to the Classification Committee for housing and status review.
Cammarata's appeal to the administrator of the institution was denied on October 14, 2008. She filed a notice of appeal before this court challenging the confiscation of the money as a violation of her right to due process and the loss of commutation time as an excessive sanction.
With respect to her due process contention, Cammarata argues that the Department of Corrections was required to prove at a trial that she intended to use the money for unlawful purposes before forfeiting it to the State Treasury. It is true that the forfeiture statutes under the Criminal Code distinguish prima facie contraband, such as controlled dangerous substances, unlawful firearms, and counterfeit products, N.J.S.A. 2C:64-1(a)(1), from property that is innocent in itself but used in furtherance of criminal activity, such as vehicles, money, and real property, N.J.S.A. 2C:64-1(a)(2)-(4). The latter types of forfeitable property are sometimes called "derivative contraband." State v. Seven Thousand Dollars, 136 N.J. 223, 233 (1994); State v. One 1994 Ford Thunderbird, 349 N.J. Super. 352, 370 (App. Div. 2002). When seeking to forfeit derivative contraband, the State must prove that the property facilitated or was intended to facilitate the commission of a crime, became or was intended to become an integral part of the criminal activity, or was the proceeds of illegal activity. N.J.S.A. 2C:64-1(a)(2)-(4). The same requirement does not apply to prima facie contraband. N.J.S.A. 2C:64-1(a)(1).
The property that inmates in a prison setting may possess is restricted by prison rules. The unauthorized possession of such property would more aptly place it in the category of prima facie, not derivative, contraband. The cases cited in Cammarata's brief do not address forfeiture of unauthorized property taken from a prison inmate. Nor has our own research discovered any legal authority that applies the general forfeiture statutes, N.J.S.A. 2C:64-1 to -9, to the prison setting. We conclude that those statutes do not apply to unauthorized property confiscated from an inmate inside a prison or similar institution.
The Commissioner of the Department of Corrections is empowered by N.J.S.A. 30:1B-24 to promulgate rules and regulations applicable to correctional institutions. The regulations pertaining to disciplinary matters explicitly list "confiscation" as an authorized sanction for any offense numbered with an asterisk. N.J.A.C. 10A:4-5.1(a)(8). The offense charged against Cammarata, Prohibited Act *.207, is such an asterisk offense. N.J.A.C. 10A:4-4.1(a). Thus, the legal authority for confiscation of Cammarata's money is found in these regulations, not the forfeiture statutes within the Criminal Code.
More significant, the regulations pertaining to possession of unauthorized money state in relevant part:
All unauthorized money . . . found in an inmate's possession shall be immediately seized . . . .
1. Any inmate found to be in possession or to have control of such money . . . shall be ...