August 6, 2010
CARNELL GIBBS, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 March 23, 2010
Before Judges Messano and LeWinn.
Appellant Carnell Gibbs appeals from the February 13, 2008 final agency decision of the Department of Corrections (Department) upholding the hearing officer's decision finding him guilty of the following infractions: *.352, "counterfeiting, forging or unauthorized reproduction or use of any classification document, court document, . . . or any other official document"; and .603, "possession of gambling paraphernalia[,]" in violation of N.J.A.C. 10A:4-4.1(a). He was sanctioned fifteen days' detention (with credit for time served); ninety days' administrative segregation, sixty days' loss of commutation; and confiscation of his word processor and floppy disks which he had maintained in his cell. We affirm.
An investigative report dated February 1, 2008, stated that appellant "did possess gambling paraphernalia that was stored on a floppy disk found in [his] word processor." Another investigatory report on that same date stated that appellant "did use his word processor and electronic media to create, maintain and store documents and templates that pose a severe risk to institutional security." Both reports are signed by Sergeant R. Dolce.
Appellant was assigned counsel substitute at his hearing which occurred on February 5, 2008. Regarding the *.352 infraction, the hearing officer relied on Dolce's report stating that appellant was in possession of two 3.5-inch floppy disks "that contained several official Departmental documents and gambling paraphernalia . . . found in the inmate's property along with his word processor." The hearing officer also relied upon documents downloaded from those disks, and noted that one disk "contains gambling paraphernalia as well as other unrelated letters[,]" and another "contains 10 pages of official
[D]epartmental documents including personnel records from staff and policy directives."
The hearing officer acknowledged appellant's argument "that his word processor could not have generated those documents[,]" but stated that he had "reviewed the disks and their content[,] . . . [and] noted that the word processor . . . does ha[ve] the ability to print the contents of the disks." The hearing officer further noted that "papers generated from the disk contained several official Departmental documents" such as "letters of counseling for staff at NJSP and directives from supervisors at NJSP."
Regarding the .603 charge, the hearing officer noted that one of the floppy disks confiscated from appellant's cell "was capable of . . . saving the contents of [another disk] which contained the gambling paraphernalia[,]" and the saved disk "contained . . . terms and language consistent with gambling paraphernalia."
The adjudication sheet indicates that appellant was offered, but declined, "in-person confrontation . . . [of] adverse witnesses."
Appellant appealed to the prison administrator. His counsel substitute prepared the appeal documents and argued that the evidence was insufficient to sustain the charges; appellant's word processor could not "generate" the documents in issue; and appellant was "framed . . . ."
On February 13, 2008, Assistant Superintendent James Drumm issued a decision upholding the hearing officer's determinations, citing the following reasons:
The evidence presented clearly substantiates the charge as written. There was substantial credible evidence provided. The [a]ppellant claims that the evidence found on the computer disks could not be created on his word processor. The [h]earing [o]fficer's summary noted, however, that the information from the disks could be printed off of the [a]ppellant's word processor. How they were put on the disk is immaterial to the fact that the disks were confiscated from the inmate. Leniency is not warranted due to the serious nature of the charges.
Appellant requested a re-investigation of the charges on February 23, 2008, claiming ineffective assistance of his counsel substitute; lack of compliance with N.J.A.C. 10A:4-9.10 permitting him to be present at his hearing; and the lack of an opportunity to call witnesses and present documentary evidence in his defense, pursuant to N.J.A.C. 10A:4-9.13. On March 18, 2008, Prison Administrator Michelle Ricci denied his request, noting that he had submitted an appeal from the hearing officer's decision and, therefore, was attempting to have her office "re-consider [his] appeal . . . ."
On appeal, appellant raises the following contentions for our consideration:
THE MARCH 18, 2008 DECISION BY PRISON ADMINISTRATOR MICHELE [SIC] R. RICCI TO DENY APPELLANT'S REQUEST FOR A RE-INVESTIGATION OF THE DISCIPLINARY CHARGES IN THIS MATTER VIOLATED THE PROVISIONS WHICH WERE ESTABLISHED IN HENRY v. RAHWAY STATE PRISON, 81 N.J. 571, 579-80 (1980) AND IN RE TAYLOR, 158 N.J. 644, 657 (1999), AND SHOULD BE REVERSED AND REMANDED BACK TO THE AGENCY FOR FURTHER PROCEEDINGS.
A. LACK OF SUBSTANTIAL EVIDENCE
B. CHAIN OF EVIDENCE
APPELLANT WAS DENIED THE RIGHT TO CONFRONTATION IN VIOLATION OF N.J.A.C. 10A:4-9.13(A), 10A:4-9.14(A) AND U.S.C.A. CONST. AMEND, 6 AND 14.
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL SUBSTITUTE DURING HIS DISCIPLINARY HEARING AND THE MATTER SHOULD BE REVERSED AND REMANDED.
Having reviewed these contentions in light of the record and applicable principles of law, we conclude they are without merit. The decision of the Department is supported by substantial credible evidence in the administrative record. R. 2:11-3(e)(1)(D).
Appellant's contention that he was denied the right to confrontation is belied by the documents of record. He claims that the written adjudication form indicates this denial, but states that the form "is not correct." Appellant further notes that his counsel substitute signed the form on which his confrontation refusal is noted, but states that this "was clearly done out of the presence of [a]ppellant and after [the hearing officer] had made his findings."
Appellant argues that he was not present at the adjudication hearing. However, both the adjudication form and the hearing officer's statement of reasons for his decision reflect information received directly from appellant, namely that: (1) "[inmate] declines to call witnesses as provided by the [hearing officer]"; and (2) "[i]nmate . . . argued that his word processor could not have generated th[e] documents and he was not in possession of any official credentials." These statements indicate that appellant did, in fact, participate in the adjudication hearing, and that his claims and defenses were made known to, and considered by, the hearing officer.
Appellant's argument regarding his counsel substitute's representation relates primarily to the failure to request that "the word processor be examined by [the Special Investigation Division's] Computer Forensic Unit . . . to determine exactly when the documents and gambling items were stored on disk." The record does not indicate that appellant raised this issue below. His plea of not guilty, the fact that he declined to confront adverse witnesses, and his defense regarding the capacity of his word processor are all a matter of record. Clearly, had appellant asserted this claim below, the record would so reflect. Because appellant did not raise this issue below, where it could have been addressed by the hearing officer, we deem this argument waived.
We reach the same result with respect to appellant's argument concerning the chain of evidence, which he raises for the first time on appeal. We will not consider such arguments. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973).
We are satisfied that under the totality of circumstances, appellant was accorded the appropriate safeguards and protections during the proceedings, in accordance with Avant v Clifford, 67 N.J. 496, 522-30 (1975).
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