February 2, 2012
JESUS CINTRON, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Page 2, displays the A.L.K.Q.N "CODE OF ETHICS".
The hearing officer found Cintron guilty of both charges. Sanctions of 180 days administrative segregation and 180 days loss of commutation time were imposed on the *.202 charge. On the *.011 charge, sanctions of 280 days administrative segregation and 280 days loss of commutation time, both consecutive to the sanctions imposed on the *.202 charge, and 180 days loss of television, radio and telephone privileges, were imposed.
On February 2, 2011, Cintron submitted a written request to the administrator for dismissal of the charges because the delay in his hearing was a violation of his procedural due process rights. The Associate Administrator upheld the decision of the hearing officer. In this appeal, Cintron presents the following issues for our consideration:
THE DISCIPLINARY HEARING OFFICER[']S FINDING OF GUILT LOSES CREDIBILITY BASED UPON VIOLATION OF APPELLANT'S PROCEDURAL DUE PROCESS. THE DEVIATION FROM THE REQUIREMENT THAT INMATES SHOULD HAVE THEIR HEARING WITHIN 72 HOURS OF ALLEGED INFRACTION WAS VIOLATED BY THE DEPARTMENT OF CORRECTIONS. POINT II
THE AGENCY'S DISPOSITION OF DISCIPLINARY APPEAL DOES NOT ADDRESS APPELLANT'S ISSUE RAISED ON APPEAL THAT HIS PROCEDURAL SAFEGUARD, UNDER [N.J.A.C. 10A:4-9.8 AND 10A:4-9.7], DUE PROCESS RIGHTS WERE VIOLATED BECAUSE NO EXTREME CIRCUMSTANCES EXISTED TO JUSTIFY THE N.J. D.O.C.'S DEVIATION OF THE 72 HOUR SCHEDULED HEARING PERIOD AS WELL AS FOR THE 48 HOUR POSTPONEMENT PERIOD.
SANCTIONS IMPOSED BY D.H.O. ARE EXCESSIVE AND DETRIMENTAL TO INMATE JESUS CINTRON'S REHABILITATION PROCESS. DUE TO THE SANCTION OF 460 DAYS LOSS OF COMMUTATION CREDITS WHICH IS A CONSTITUTIONALLY PROTECTED LIBERTY INTEREST.
We are satisfied that none of these arguments have any merit.
Our review of the DOC's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999). Here, Cintron's own admission of guilt as to the *.202 charge and the evidence concerning the discovery and evaluation of materials containing the A.L.K.Q.N. Code of Ethics and doctrine provide ample support for the adjudications.
Cintron argues, however, that the adjudications should be set aside because the delay of his hearing while he was in pre-hearing detention violated N.J.A.C. 10A:4-9.8 (c),(d), and (e), and therefore deprived him of his procedural due process rights. We disagree.
Cintron's argument rests upon the failure of the DOC to adhere to the following provisions of N.J.A.C. 10A:4-9.8 that relate to scheduling a disciplinary hearing:
(c) Inmates confined in Prehearing Detention shall receive a hearing within three calendar days of their placement in Prehearing Detention, including weekends and holidays, unless there are exceptional circumstances, unavoidable delays or reasonable postponements. Should the third day fall on a Saturday, Sunday or holiday, the hearing shall be held on the business day immediately following the weekend or holiday.
(d) Inmates confined in Prehearing Detention shall be given priority in scheduling their appearance before the Disciplinary Hearing Officer or Adjustment Committee.
(e) No delays in hearing a case shall be permitted for the purpose of punishment or discipline.*fn1
The failure to comply with the time limits set by this regulation does not rise to the level of a deprivation of procedural due process. An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). 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; a limited right to 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, where the charges are complex, the inmate is permitted the assistance of a counsel-substitute. Id. at 525-33. It is undisputed that Cintron was afforded each of these rights.
The delays also do not require the dismissal of the charges against Cintron. N.J.A.C. 10A:4-9.9(a) explicitly states, "The failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." The Disciplinary Hearing Officer or Adjustment Committee has the discretion to dismiss a disciplinary charge because of a violation of time limits upon consideration of (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the inmate in preparing his/her defense; and (4) the seriousness of the alleged infraction. Ibid.
The infractions alleged here were both asterisk offenses, explicitly identified as "the most serious" of the prohibited acts. N.J.A.C. 10A:4-4.1. Cintron has not identified any prejudice he suffered in his defense against the charges as a result of the delays. The hearing officer prepared a contemporaneous memorandum explaining the reasons for the delays, one attributable to Cintron's request for a polygraph, the others caused by holidays, inclement weather and issues relating to the disciplinary proceeding itself. The stated reasons for the postponements can be justified as "reasonable" pursuant to N.J.A.C. 10A:4-9.8(c). Although the resulting delay exceeded one month, we are satisfied there was no abuse of discretion in declining to dismiss the charges for failure to comply with the time limits set forth in N.J.A.C. 10A:4-9.8.
Cintron's last argument, that the sanctions imposed were excessive, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).