On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges R. B. Coleman and Simonelli.
Antonio Munoz, an inmate at Northern State Prison in Newark, appeals from a Final Agency Decision of the New Jersey Department of Corrections (DOC) finding him guilty of Prohibited Act .053, indecent exposure, in violation of N.J.A.C. 10A:4-4.1. On appeal, Munoz claims that he was denied due process because he was found guilty without the opportunity to appear before a hearing officer, make a statement, cross-examine adverse witnesses, or present witnesses on his own behalf. Munoz also claims that he was held in pre-hearing detention (PHD) "longer than allowed." We remand for a new hearing consistent with this opinion.
Munoz is currently serving a thirty-two-year, five month, ten-day sentence with a ten-year parole disqualifier for robbery and related offenses. On December 12, 2007, while performing camera surveillance of the Security Threat Group Management Unit (STGMU) visit area at Northern State Prison, Corrections Officer Recruit B. Summers observed Munoz touching his genitals during a non-contact window visit. Summers dispatched Senior Officer Glenda Smith to investigate. Smith observed Munoz masturbating in view of his female visitor, Angelique Camacho, whom Munoz describes as his fiancé. When Smith arrived, Munoz turned around, exposing himself to Smith. Munoz was immediately placed in PHD and a Form 259 Disciplinary Report (Disciplinary Report) was filed charging Munoz with a violation of Prohibited Act .053, indecent exposure, in violation of N.J.A.C. 10A:4-4.1.
On December 13, 2007, at 11:49 a.m., Sergeant Ronald Sloan delivered a copy of the Disciplinary Report to Munoz containing the charge and Smith's written allegation. Sloan undertook an investigation of the alleged infraction and recorded findings in Section B of the Disciplinary Report. The Disciplinary Report indicates that Munoz pleaded not guilty, made no statement concerning the charge, and requested that the inmate paralegal act as counsel substitute. In two sections of the Disciplinary Report labeled "Statements of witnesses," Sloan wrote in the word "None." Sloan also wrote in the word "None" in the next section, labeled "Other facts concerning the charge."
On December 14 at 11:55 a.m., a hearing took place before Disciplinary Hearing Officer J. McGovern, as memorialized in a Form 259-A hearing form (Hearing Form). The Hearing Form indicates that several reports were used as evidence against Munoz, including those of Smith, Summers, and Sergeant James, the area supervisor, who escorted Munoz to PHD immediately following the incident. Those reports are included as addenda to the Hearing Form. Summers' report indicates that while remotely monitoring the visitation rooms he witnessed Munoz's hand moving rapidly near his genital area and called on Smith to investigate. Smith's report indicates that she "walked in on [Munoz] and noticed his hand in his genital area. He turned around and had his penis in his hand with his pants partially down jerking off in front of his female visitor[.]" James' report indicates that he saw Munoz attempting to pull up his pants when he arrived to escort Munoz to PHD. The makers of the other reports did not actually witness Munoz performing the prohibited act.
The Hearing Form provides spaces for evidence presented by the inmate. In the space next to a section labeled "Statement of inmate," Hearing Officer McGovern wrote in the word "None." In the space following the next section, labeled "Statement of counsel substitute," Hearing Officer McGovern wrote in "Plea for leniency." A section for information regarding inmate's witnesses states, in similarly terse language, that none were requested, that no reason was provided for the inmate's lack of desire to produce witnesses, and that no other documents were submitted on the inmate's behalf. In the next section, in which the inmate may request to confront or cross-examine adverse witnesses, the words "Hearing officer offered; inmate declined" appear.
On the following page of the Hearing Form, Munoz's counsel substitute, identified only as "DeSouza," signed an acknowledgement that the information in the preceding sections accurately reflects what took place at the hearing. Munoz's signature does not appear anywhere on the form. The hearing officer's decision finding Munoz guilty follows, with a summary indicating that he relied on the reports of Smith, Summers, and James as evidence of the action charged.
Munoz received a disciplinary sanction of ninety days administrative segregation, sixty days loss of commutation time, fifteen days detention with credit for time served, thirty days loss of recreation privileges, and ninety days loss of visits. On December 29, 2007, Munoz submitted an appeal to the Administrator, who upheld the findings and sanctions of the hearing officer notwithstanding Munoz's contention that he never received a hearing.
On appeal, Munoz disputes the officers' factual account of the incident and the amount of process provided. Regarding the facts of the incident, Munoz claims that the story of his alleged masturbation was concocted by Smith, who was displeased because Munoz and his visitor continued their visit despite being told that the one-hour time limit had elapsed. Munoz also contends that (1) he was not present at his hearing; (2) he was deprived of the opportunity to give a pre-adjudication statement, contrary to the notation on the Disciplinary Report indicating that the inmate had "No statement at this time"; (3) he was not provided with the opportunity to call a witness on his behalf, contrary to the notation on the Hearing Form indicating "none requested," which was acknowledged by counsel substitute; and (4) had he been provided with the opportunity he would have requested to review the video evidence that allegedly showed him committing the prohibited act.*fn1
On review, we must uphold a final agency decision unless it is arbitrary, capricious, unreasonable or unsupported by credible evidence. In re Taylor, 158 N.J. 644, 657 (1999);
Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The relevant standard of review is "'whether the findings could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole . . . .'" In re Taylor, supra, 158 N.J. at 656 (quoting ...