September 24, 2010
ERIK RE'VOAL, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Administrative Decision of the Department of Corrections.
The opinion of the court was delivered by: Per Curium
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Coleman and Lihotz.
Inmate Erik Re'Voal, who is currently incarcerated in New Jersey State Prison (NJSP), appeals from a final agency action of the Department of Corrections (DOC), upholding a hearing officer's finding that he committed prohibited acts *.009, misuse of computer related equipment and *.306, conduct which disrupts institutional security in violation of N.J.A.C. 10A:4-4.1(a). On appeal, Re'Voal argues the determination was against the weight of the evidence and challenges the procedures employed by the hearing officer as violative of his due process rights. After consideration of these arguments, in light of the record and the applicable law, we affirm.
The following facts are taken from the administrative record. On January 29, 2009, Re'Voal was served with notice that he had possessed "unauthorized computer media, namely, computer disks that would allow for the manipulation of departmental computer systems" prohibited by *.009. An extensive investigation, supervised by Senior Investigator R. Dolce, SID, NJSP, revealed that Re'Voal and other inmates in the prison education department's Donald Bourne School had possessed seventy-one disks. Forty disks were labeled with Re'Voal's name, including copies of original systems disks found in a satchel also identified with his name. Dolce noted that "[a] number of these disks [allowed] for [the] reconfigur[ation of] State computers."
A second notice charged Re'Voal with offense *.306, stating he had engaged in inappropriate conduct evincing "undue familiarity" with Quianna Means-Davis, a civilian teaching assistant in the Donald Bourne School at NJSP, by providing her with several cards and notes containing personal and romantic overtones, "facilitating the employee[']s corruption."
The adjudicatory hearing commenced on February 2, 2009. Re'Voal and his counsel substitute appeared via court-line and entered a plea of not guilty to both charges. Thereafter, the matter was twice postponed to allow defendant additional time to review the evidence and obtain witness reports. Two additional adjournments were requested by Re'Voal or his counsel substitute. Specifically, on February 9, issues were presented to the hearing officer, including a request to review all videotaped interviews conducted during the investigation and the original investigation report. Re'Voal also requested witness statements from three staff members. Later, on February 11, defendant submitted confrontation questions to be presented to the witnesses. The matter was continued to February 18, 2009.
Prior to the next scheduled hearing date, the hearing officer reviewed and considered Dolce's seventy-five page confidential investigation report, which included interviews with numerous staff members and inmates. The report encompassed investigation of multiple infractions resulting in charges against numerous inmates. The hearing officer determined disclosure of the entirety of the report to Re'Voal was unnecessary because the documents contained "crucial and highly sensitive statements [that] could jeopardize [the safety of] both the involved inmates as well as involved civilian staff of the [NJSP]." He denied defendant's request for release of the report. In its place, he prepared a written synopsis of the evidence implicating Re'Voal, which was marked into evidence.
On February 20, Dolce and Ms. Deniece Gray, NJSP's Assistant Supervisor of Education, appeared and responded to written questions prepared by Re'Voal and posed by the hearing officer. The hearing officer recorded all replies, then allowed follow-up questions and responses. Re'Voal was not present during this process.
Additionally, written statements that had been requested from staff members were marked into evidence. Gray affirmed Re'Voal was given educational disks for his college courses and that "all disks were kept secured in the school area[.]" Ismail Haitama, a teacher in the college correspondence studies program, explained Re'Voal's educational materials were kept in Room 207. However, the inmate worked as a clerk for another school staff member, who "retained his audio equipment, CD's and disks in Room 209/208." Instructor Christopher Bound stated he was unaware of disks used by Re'Voal, as he was not his supervisor.
Appearing on February 20, 2009, Re'Voal presented a written statement in his defense. He first requested dismissal of the *.009 charge, asserting he never possessed the computer media as the compact disks were "kept under lock and key in the D.B. School," so that a staff member must allow access and use. He stated he was enrolled in the college courses and any disks identified with his name contained authorized school related course work. Re'Voal was also employed in the education department to maintain the computerized student activity roster, therefore, he was permitted to use the department's computers and make one back-up copy of materials.
Re'Voal also challenged the hearing officer's refusal to release Dolce's report and videotape interviews, contending that decision made it impossible to defend the charges. He accused the hearing officer of relating the report's contents in a biased manner so as to support the charges. Further, he argued the delay in charging him with the alleged offenses, following their actual discovery on November 2008, violated his rights of due process.
Regarding the *.306 charge, Re'Voal maintained he did not receive any written rule or policy prohibiting an inmate from signing a get well card for a civilian staff member. Re'Voal asserted the card in question was not given to Means-Davis but another staff member, long before she was employed by NJSP. Moreover, he claimed others who had engaged in similar conduct received lesser charges.
At the close of the hearing, the hearing officer found Re'Voal guilty. He imposed sanctions for the two offenses of fifteen days detention with credit for time served, 365 days administrative segregation and 365 days loss of commutation credit.
On appeal, Re'Voal seeks reversal, contending the proofs relied upon to support the charges were insufficient and the denial of his request to review the confidential report and the videotapes impeded his due process rights, as the summary was an insufficient substitute for that evidence.
Our review of agency action is limited. The DOC's regulations require any "finding of guilt at a disciplinary hearing [ ] be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Thus, a DOC decision on prisoner disciplinary matters will be disturbed only upon a finding that its ruling is "arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole." In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); see also McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Jacobs v. Stephens, 139 N.J. 212, 217 (1995); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In Re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quotations and citations omitted); In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956).
Turning to the specific arguments Re'Voal raises, we reject his contention that he did not possess the computer disks and that the evidence showed he only used disks under supervision and authorization of school staff because all disks were secured. The evidence noted in the hearing officer's well-documented written determination sufficiently supports the conclusion of guilt.
"[A] person has constructive possession of an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Morrison, 188 N.J. 2, 14 (2006) (internal quotations and citations omitted).
Here, although the disks were not discovered in Re'Voal's cell, the circumstances of their discovery support the finding of Re'Voal's constructive possession. Dolce stated seventy-one disks marked in black with Re'Voal's name were found in a satchel in the area of the Donald Bourne School. The disks were neither locked in a cabinet nor limited to classroom instructional material. They were located in an open area of the school where Re'Voal worked. Also, contrary to the inmate's assertions, the disks were not limited to his college studies but included original system disks, blank discs and printer and driver disks.
The same is true regarding the sufficiency of the evidence supporting the second charge. The documents presented included four notes or cards signed or initialed by Re'Voal, three of which were specifically addressed to Means-Davis. The documents' content reflect an inappropriate level of "undue familiarity" and personal interaction with Means-Davis, not permitted between staff and inmates. We reject Re'Voal's minimization of the content and find no basis to reject the findings of the hearing officer.
Addressing defendant's due process challenge based upon the adjournment of the hearing, we note N.J.A.C. 10A:4-9.9(a) specifically provides that "[t]he failure to adhere to any of the time limits prescribed... shall not mandate the dismissal of a disciplinary charge." Instead, the hearing officer is permitted to exercise his or her discretion after consideration of "[t]he length of the delay[,]  [t]he reason of the delay[,]  [p]rejudices to the inmate in preparing his/her defense[,] and  [t]he seriousness of the alleged infraction." N.J.A.C. 10:4-9.9(a)(1) to (4).
In DOC disciplinary proceedings, an inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence, as well as confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, in many instances, the assistance of a counsel substitute. Avant v. Clifford, 67 N.J. 496, 525-46 (1975).
Examining the record in light of these procedural requisites, we conclude Re'Voal was afforded all process he was due. The delay was not inordinately extended and each time the matter was continued, the hearing officer recorded an explanation of reasons justifying continuation. Further, he noted the seriousness of the infractions and concluded the extent of the evidence warranted additional time for Re'Voal's review. But for the final adjournment, all prior requests were advanced by Re'Voal or his counsel substitute. The last continuation of the hearing from February 18 to 20 related to the inability to complete in one day both the confrontation of DOC's witnesses as well as the presentation of Re'Voal's evidence. Under these circumstances, the hearing officer did not abuse his discretion and Re'Voal suffered no prejudice.
Finally, we are not persuaded Re'Voal was prejudiced by the hearing officer's denial of his request to release the entirety of Dolce's investigative report. The document was not limited to the disciplinary charges against Re'Voal, but encompassed the infraction alleged to have been committed by several inmates. Also, as the hearing officer noted, the report included NJSP confidential information and procedures.
The hearing officer's decision to retain the confidentiality of the bulk of the Dolce report and limit defendant's review to the content of a summary report was neither arbitrary nor an abuse of discretion. "Prisons are dangerous places[,]" and prison administrators must be given latitude to control their "volatile environment[s]." Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 65 (App. Div.), certif. denied, 162 N.J. 196 (1999).
We conclude there is substantial, credible evidence in the record to support the agency's decision, and discern no basis on which to reach a contrary conclusion. Jacobs, supra, 139 N.J. at 222.
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