On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Carchman and Lihotz.
Appellant, Bassem Abdolrazek, an inmate at Riverfront State Prison, appeals from a final decision of the Department of Corrections (DOC) adjudicating him guilty of disciplinary infraction *.011, possession or exhibition of any security threat group (STG) material. N.J.A.C. 10A:4-4.1(a). "A STG is an inmate group designated as such by the Commissioner on the ground that the group poses a threat to persons, property, the community or the orderly operation of a correctional facility." Ortiz v. N.J. Dep't of Corr., 406 N.J. Super. 63, 65 (App. Div. 2009) (citing N.J.A.C. 10A:1-2.2; N.J.A.C. 10A:5-1.3; N.J.A.C. 10A:5-6.5(a)). The DOC prohibits the organization and operation of STGs, N.J.A.C. 10A:5-6.2(a)-(c) and STG activities, N.J.A.C. 10A:5-1.3. Under N.J.A.C. 10A:4-4.1, prohibited act *.010 forbids "participating in an activity(ies) related to a [STG]" and prohibited act *.011 forbids "possession or exhibition of anything related to a [STG.]"
After finding Abdolrazek guilty of the *.0ll charge, the hearing officer expressed a need to deter possession of STG material and recommended a sanction of fifteen-days detention, with credit for time served, 150 days administrative segregation, and 150 days loss of commutation credit. Abdolrazek appealed the hearing officer's adverse decision to the prison administrator who, on October 30, 2008, affirmed the guilty finding of the sanction imposed. We affirm.
These are the facts presented in the administrative hearing. On October 20, 2008, during a routine search of Abdolrazek's cell, Senior Corrections Officer Allen and Sergeant Cruthers found what was considered STG material under Abdolrazek's bunk. Specifically, Abdolrazek authored a two-page letter addressed to Juan Urena of Newark, which was suspected to include references related to the Almighty Latin King Queen Nation (Latin Kings). Senior Investigator Neil Layden, of the Special Investigation Division (SID) Intelligence Section, analyzed Abdolrazek's letter. The Intelligence Section of the SID is "authorized to identify inmates as [STG] members." N.J.A.C. 10A:5-6.5(b). Layden had received special DOC training "to recognize and identify . . . STG related paraphernalia, activities, indicators and relationships."
In his October 21, 2008 report, Layden identified statements in the document attributed as references to the Latin Kings. These included the use of the words: 1) "Almighty," a common reference to the Almighty Latin King Queen Nation; 2) "Golden," as gold is the color of choice for the Latin Kings; 3) "All Due Respect," with the letters "A," "D" and "R" more prominent than the others as "'ADR' is a known abbreviation for 'Amor De Rey,' which is Spanish for 'Love of Kings'"; and 4)"lion" to describe other mentioned individuals, as that word is used interchangeably with the word "King" because the lion is the "King of the jungle." Layden concluded the seized letter related to a STG.
Abdolrazek entered a not guilty plea to the disciplinary charge and, because the charge was an asterisk offense, counsel substitute was assigned to represent him. At the hearing, Abdolrazek was offered the opportunity to call witnesses on his behalf and to confront and cross-examine adverse witnesses, but he declined. His waiver of those rights is noted on the hearing officer's report, which bears his counsel substitute's signature on line 16, acknowledging that the hearing officer's report accurately reflected what occurred at the disciplinary hearing.
At the hearing, Abdolrazek and his counsel substitute offered a mental health report of the prisoner and presented explanatory statements. The report concluded that any mental health issue findings, "do not preclude the possibility that [Abdolrazek] is involved with a [STG]." Abdolrazek stated "I am "Egyptian" and was "born and raised as a Muslim." "I am not Spanish." Further, he asserted he was not "gang involved" and the words used in his letter were not intended to mean something else. Counsel substitute argued Abdolrazek was not Spanish, which "precludes him from Latin Kings," and that the words used in his letter were used by people of other races and religions.
After consideration of all the evidence and crediting Layden's report, the hearing officer found Abdolrazek guilty of the *.011 violation. Abdolrazek filed his institutional appeal from the hearing officer's adverse decision. The hearing officer's determination was upheld and this appeal followed.
Abdolrazek does not dispute the letter was in his possession but rather maintains its references were not to the Latin Kings. He argues he is not Spanish, and the isolated words have ordinary meanings or are common cultural or religious expressions not exclusively identifiable with the Latin Kings. Therefore, the disciplinary determination was against the weight of the evidence presented and must be reversed.
Our scope of review is a narrow one, and Abdolrazek's contentions are reviewed in accordance with that standard. The breadth of the DOC's expertise and discretionary authority in day-to-day matters of prison operation, policy, regulation and administration deserve great deference. Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 67 (App. Div.), certif. denied, 162 N.J. 196 (1999). We affirm unless the agency's decision is arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
"We recognize that determining whether prison materials are gang related constitutes a particular [DOC] expertise[.]" Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003). "Without question, identification of inmates who are members of a group that poses a threat to our prisons is a matter that should be addressed by the Department and its determination given deference unless capricious or arbitrary." ...