On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012 -
Before Judges Yannotti and Espinosa.
Jesus Cintron appeals from a final agency decision of the Department of Corrections (DOC) that he committed prohibited acts *.011, possession of security threat group (STG) material, and *.202, possession of a weapon, N.J.A.C. 10A:4-4.1. We affirm.
On December 30, 2010, a search of Cintron's cell resulted in the confiscation of seventeen pages of material that contained references to the Latin Kings and a sharpened metal instrument. Cintron admitted the sharpened pen was his. As a result of the prohibited act charging the weapon possession, Cintron was confined in prehearing detention pursuant to N.J.A.C. 10A:4-10.1(c).
Notice of the disciplinary charges were delivered to Cintron on December 31, 2010, and the matter was referred to a hearing officer.
The disciplinary hearing was initially scheduled for January 4, 2011. Cintron pled guilty to the weapon possession charge and pled not guilty to the STG materials charge. The hearing was postponed to January 5, 2011 because the hearing officer requested a psychological evaluation of Cintron, a request later admitted to have been made in error. The hearing was postponed a second time so the hearing officer could receive copies of the letters seized from Cintron's cell hearing. On January 21, 2011, the hearing was scheduled to proceed but was postponed to process Cintron's request for a polygraph, which was subsequently denied on January 25, 2011. The hearing was postponed a fourth time due to inclement weather. The hearing was finally concluded on February 1, 2011.
As a result of the repeated postponements, Cintron spent thirty-four days in pre-hearing detention before the adjudication on his contested disciplinary charge. By memorandum to the record dated February 1, 2011, the hearing officer addressed the repeated delays:
Please be advised that due to the following this Hearing officer has invoked [N.J.A.C.] 10A:4-9.8 and 10A:4-9.9: no substitute DHO 31 January 2011, inclement weather 27 January 2011 (noon opening of State Offices), DHO assigned to NJSP 19 January 2011 (emergency coverage), Martin Luther King day 17 January 2011, and inclement weather 12 January 2011 (two hour delayed opening of State offices). No Due Process violations for time parameters will be approved by this hearing Officer.
During the course of his disciplinary process, Cintron requested and was granted the assistance of a counsel-substitute. He presented a written statement in which he asserted his innocence. He was offered and declined the opportunity to call witnesses or to cross-examine any adverse witnesses. Cintron and his counsel-substitute were provided the opportunity to review the evidence used by the hearing officer and review the adjudication report, which his counsel-substitute acknowledged accurately reflected what occurred at the disciplinary hearing.
In addition to the reports regarding the discovery of the items in Cintron's cell, the hearing officer received a report from Senior Investigator Charles Robinson of the Special Investigations Division, Intelligence Section. In that report, Robinson presented his qualifications regarding "gang intelligence" and his determination that the seized material related to the STG, "Almighty Latin King & Queen Nation[.]" He provided the following justification for his conclusion:
After reviewing the confiscated pages, it is clear that the pages represent the Security Threat Group (STG) Almighty Latin King & Queen Nation (A.L.KQ.N) [sic]. Specifically, the pages display the "A.L.K.Q.N CODE OF ETHICS". In addition, the pages represent the ALKQN doctrine on "Kingism".
It should be stressed that all the confiscated pages in their entirety represent the STG-ALKQN. Page 1, A.L.K.N. is the acronym for the STG Almighty Latin King & Queen Nation. ...