November 12, 2009
CRAIG SZEMPLE, APPELLANT,
NEW JERSEY 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 October 27, 2009
Before Judges Skillman and Simonelli.
Defendant Craig Szemple appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act *.205, misuse of authorized medication, N.J.A.C. 10A:4-4.1.*fn1
On appeal, Szemple contends that (1) the disciplinary hearing was untimely; (2) he was tried for the charge "in absentia" and deprived of the right to confront his accuser; (3) the hearing officer committed misconduct, including forging a signature*fn2 and falsifying information on the adjudication of the disciplinary infraction form; and (4) the record lacks sufficient evidence of guilt. Defendant also contends for the first time on appeal that the hearing officer's written reason for her decision is illegible. We reject these contentions and affirm.
At all times relevant to this appeal, Szemple was incarcerated at Northern State Prison (NSP). He is serving three life sentences for convictions on two counts of murder and one count of aggravated manslaughter.
On December 12, 2007, Szemple's cell was searched while he was on a medical trip. The search revealed a large quantity of prescription medications, including 109 Isordil tablets. The DOC determined that Szemple was not compliant in taking his prescribed medication. As a result, Senior Corrections Officer Gary Cook charged Szemple with committing prohibited act *.205.
Sergeant Hudson served the charge on Szemple on December 14, 2007. Szemple pled not guilty, indicating that he would wait until the hearing to make a statement, and declined to name any witnesses. Szemple requested and was granted a counsel substitute to represent him at the hearing. Sergeant Hudson found the charge had merit and referred it to a disciplinary hearing officer.
The hearing began on December 19, 2007; however, it was adjourned because of an emergency shutdown. Contrary to Szemple's claim, he was not tried "in absentia." Rather, the hearing continued on December 20, 2007, at which Szemple appeared with counsel substitute and gave a statement claiming he did not misuse the medication and took it every day. He declined the opportunity to call witnesses or to confront adverse witnesses. There is no evidence, including a certification from counsel substitute, indicating that any wrongful conduct occurred, including the forging of a signature. Counsel substitute has not denied signing the adjudication of disciplinary charge form acknowledging that the information contained therein "accurately reflects what took place at the inmate disciplinary hearing."
In adjudicating Szemple guilty of the charge, Hearing Officer Nolley relied on a prison nurse's report, which confirmed that Szemple was not taking his medication as directed. Nolley concluded that:
Inmate pleaded not guilty to charge. Inmate stated he was in compliance with his medication. The nurses clearly listed his medications and stated he was not in compliance with orders. Inmate Szemple had 109 pills of Isordil in his possession. There is no way he can substantiate having this many pills at one time other [than] the fact that he did not take his meds as prescribed. Inmate had over 8 types of medication in his possession with pills numbered from 13-109 each in his possession. Inmate has to be held [accountable] for his actions.
Contrary to Szemple's contention, Nolley's written statement of reasons is legible.
After finding Szemple guilty of the charge, Nolley imposed sanctions of 10 days detention, 185 days administrative segregation, 185 days loss of commutation time, 365 days of urine monitoring, and 15 days loss of recreation.
On December 26, 2007, Szemple administratively appealed Nolley's decision to the prison Administrator. On January 5, 2008, Assistant Superintendent Eric Stokes rescinded charge *.709 but did not address charge *.205. Szemple filed an appeal and the DOC moved for a remand to consider charge *.205. Prior to resolution of the motion, Assistant Superintendent Frank Pedalino affirmed Nolley's decision and sanction on the *.205 charge.
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 530.
Based upon our review of the record, we are satisfied that Szemple was afforded all due process protections required by Avant, supra, 67 N.J. at 525-33, that Nolley's decision was based on substantial evidence that Szemple 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 (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); N.J.A.C. 10A:4-9.15(a).