May 14, 2012
MICHAEL MARTIN, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 April 23, 2012
Before Judges Grall and Alvarez.
Michael Martin appeals from a final decision of the Department of Corrections finding he committed prohibited acts .752 and .802 - attempting to accept "money or anything of value from, another inmate," in violation of N.J.A.C. 10A:4-4.1(a).
His sanctions were forfeiture of the $900 he obtained, 15 days' detention, 60 days' loss of commutation credits, and 90 days' administrative segregation that was suspended for 90 days. See N.J.A.C. 10A:4-5.1(b) and N.J.A.C. 10A:3-6.6(a)3.
The Department's evidence was gathered by an officer of its Special Investigation Division (SID) in an effort to confirm or dispel suspicions raised by a series of deposits and withdrawals involving inmate accounts. Damon Brown settled a civil action and the funds were deposited in his prison account. On August 12, 2010, Brown executed a "New Jersey State Prison Business Remit" through which he transferred $3225 to Larry Faison, who lived in Maryland. Brown identified the purpose - "For Moving." On August 20, 2010, Faison obtained a postal money order and transferred $900 to Martin. Faison obtained two additional postal money orders in the amount of $1000 payable to two other inmates. The money orders were then deposited in the prison accounts of the payees. Martin's $900 was credited to his account on September 7. Brown and Martin were interviewed and both acknowledged Faison as a friend. Brown denied knowing anything about Faison sending money to inmates, and Martin denied knowing that Faison had received money from Brown or sent money to other inmates. Thus, neither inmate denied a transaction with Faison or implicated the other. The other two inmates gave similar accounts. All four inmates were charged with a prohibited act based on the transaction in which he was involved.
The remit form, money order, and notes taken by the hearing officer during his review of SID's files were shown to Martin and admitted into evidence at his disciplinary hearing. His notes set forth the calculations that led him to conclude that Faison, for a fee of $325, acted as the conduit in sending $2900 of the $3225 Brown sent him to Martin and the other inmates. Martin does not deny his friendship with Faison, and he admits that the hearing officer told him what Brown said during his interview. He has consistently denied knowing anything about the gift Faison received from Brown and transmitted to others. On appeal Martin argues:
I. THE DECISION OF THE AGENCY'S HEARING OFFICER VIOLATES APPELLANT'S RIGHT TO DUE PROCESS AND IN THE INTEREST OF JUSTICE SHOULD BE VACATED OR AT BEST REVERSED AS A MATTER OF PROCEDURAL FUNDAMENTAL FAIRNESS DUE TO THE AGENCY'S FAILURE TO COMPLY WITH AND ADHERE TO THE NECESSARY PROMULGATED PROCEDURAL SAFEGUARDS OF N.J.A.C. (NEW JERSEY ADMINISTRATIVE CODE).
[A.] THE DECISION OF THE H/O SHOULD BE REVERSED BECAUSE IT WAS NOT BASED UPON "SUBSTANTIAL CREDIBLE EVIDENCE" IN THE RECORD.
[B.] THE PROCEDURES EMPLOYED BY THE HEARING OFFICER'S FAILURE TO ADHERE TO AND COMPLY WITH N.J.A.C. 10A:4-9.15(B)(1)(I) IN HIS FAILURE TO "EXPLAIN IN SPECIFITY ON THE ADJUDICATION OF THE DISCIPLINARY REPORT FORM THE EVIDENCE THAT WAS RELIED UPON IN MAKING HIS DETERMINATION, WHY HE FOUND THE EVIDENCE CREDIBLE OR RELIABLE TO SUPPORT THE CHARGES" VIOLATED PROCEDURAL DUE PROCESS AND SHOULD BE REVERSED.
[C.] THE SANCTION IMPOSED BY THE HEARING OFFICER OF THE SIXTY (60) DAYS LOSS OF COMMUTATION TIME CREDITS WAS ERRONEOUS AND UNLAWFUL FOR IT CLEARLY WAS IN CONTRAVENTION OF AS WELL AS CONFLICTED WITH THE TERMS ENTERED INTO AS WELL AS AGREED UPON IN THE CONTRACT FOR SERVICES BETWEEN THE STATE OF MARYLAND AND THE STATE OF NEW JERSEY FOR THE IMPLEMENTATION OF THE INTERSTATE CORRECTIONS COMPACT PAGE 8, SECTION 15 DISCIPLINE AND SHOULD BE REVERSED AND VACATED AS A MATTER OF LAW, IN THE INTEREST OF JUSTICE, PROCEDURAL FUNDAMENTAL FAIRNESS.
[D.] THE HEARING OFFICER'S DENIAL OF APPELLANT'S REVIEW OF THE ALLEGED CONFIDENTIAL REPORTS WAS ERRONEOUS DUE TO THE FACT THAT THERE CLEARLY WAS NO PROTECTIVE SECURITY INTEREST IN WITHHOLDING THE DOCUMENTS AND THE FAILURE OF THE H/O TO COMPLY WITH N.J.A.C. 10A:4-9.15(b)(1)(i) WAS ARBITRARY, CAPRICIOUS, UNREASONABLE AND VIOLATED APPELLANT'S DUE PROCESS RIGHTS THUS, THE SANCTION SHOULD BE REVERSED IN THE INTEREST OF JUSTICE AS A MATTER OF PROCEDURAL FUNDAMENTAL FAIRNESS.
[E.] THE AGENCY'S DISCIPLINARY SANCTION IMPOSED BY THE HEARING OFFICER TO FORFEIT THE FUNDS AND THE AGENCY'S SEIZURE OF APPELLANT'S FUNDS FROM HIS PRISON TRUST ACCOUNT AS CONTRABAND WAS ERRONEOUS AND AMOUNTED TO AN ILLEGAL SEIZURE DUE TO THE FUNDS WAS NEVER DETERMINED OR DECLARED TO HAVE BEEN CONTRABAND WHICH MADE THE AGENCY'S ACTIONS ARBITRARY, CAPRICIOUS AND UNREASONABLE DUE TO ITS FAILURE TO ADHERE TO AND COMPLY WITH THE PROMULGATED PROCEDURAL SAFEGUARDS OF N.J.A.C. 10A WHICH VIOLATES APPELLANT'S DUE PROCESS RIGHTS TO PROCEDURAL FUNDAMENTAL FAIRNESS AND FOR THIS REASON THE FORFEITURE OF FUNDS SANCTION SHOULD BE REVERSED AND THE FORFEITTED FUNDS SHOULD BE REIMBURSED IN THE INTEREST OF JUSTICE.
[F.] THE CUMULATIVE EFFECT OF ALL OF THE NUMEROUS INSTANCES OF THE AGENCY'S FAILURE TO COMPLY WITH AND ADHERE TO THE PROMULGATED PROCEDURAL SAFEGUARDS OF N.J.A.C. (NEW JERSEY ADMINISTRATIVE CODE) 10A AMOUNTED TO ARBITRARY, CAPRICIOUS, UNREASONABLE ACTIONS AND DENIED APPELLANT'S RIGHT TO PROCEDURAL FUNDAMENTAL FAIRNESS AND AS A MATTER OF LAW, AS WELL AS IN THE INTEREST OF JUSTICE THE DISCIPLINARY SANCTIONS SHOULD BE REVERSED.
We are satisfied that the Department substantially complied with the procedural requirements set forth in Avant v. Clifford, 67 N.J. 496, 525--33 (1975), and N.J.A.C. 10A:4-9.1 to -9.28. Contrary to Martin's assertion, he was given a statement of the evidence relied upon in determining that he had committed the prohibited act, and the confidential investigation report does not include any information linking the money order from Faison to Martin with the money order Brown sent Faison other than what is provided in the hearing officer's summary.
We have no question that the evidence was adequate. Although the evidence of Martin's knowledge that Brown funded the postal money order he received from Faison is circumstantial, evidence of states of mind such as knowledge and agreement "may be proven circumstantially." State v. Samuels, 189 N.J. 236, 246 (2007). This record provided ample support for a reasonable inference that Martin accepted $900 from Faison knowing it was from Brown, another inmate. Confiscation and forfeiture are authorized penalties for this violation. See N.J.A.C. 10A:3-6.6(a)3.
A remand is required to address one of the several sanctions Martin received. He asserts that the loss of commutation time imposed violates N.J.A.C. 10A:10-3.16(f), which addresses loss of commutation time for inmates who are serving a sentence imposed by another state and have been sent to a New Jersey prison by that state pursuant to the Interstate Corrections Compact. The regulation provides "that any sanction providing for the loss of commutation credits shall not affect the terms and conditions of the sending state's sentence in excess of the amount provided for by the laws and regulations governing disciplinary sanctions in the sending state." Ibid. As Martin is an inmate sent to prison in this state by Maryland, this regulation was applicable. Because the Department's final decision does not address this issue, which requires a finding that the loss of commutation time is consistent with Maryland law, we must remand for further consideration. If this loss of commutation time is not consistent with Maryland law, that penalty must be vacated.
Affirmed in part but remanded for a determination as to whether the loss of commutation time imposed is in conformity with N.J.A.C. 10A:10-3.16(f). That determination cannot be made without reference to Maryland law. We do not retain jurisdiction.
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