June 12, 2012
JUSTICE RASIDEEN ALLAH, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Axelrad and Sapp-Peterson.
Justice Rasideen Allah is an inmate incarcerated at New Jersey State Prison in Trenton. He appeals from the final administrative agency decision by the Department of Corrections (DOC) finding him guilty of refusing to submit to a search, *.708; refusing to obey a staff member's order, .256; possession of property belong to another person, .208; and possession of anything not authorized for retention or receipt by an inmate or not issued to him or through regular correctional facility channels, .210. On appeal, Allah contends the disciplinary hearing officer violated his right to due process and he was denied effective assistance of counsel substitute.
We have considered the arguments advanced by Allah and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
The charges stem from Allah's refusal to show his orifices during an authorized strip search on September 15, 2010, and the subsequent discovery, during the search of his cell the next day while Allah was in pre-hearing detention, of unauthorized property, a stinger, which is used to heat water, and a Walkman bearing the name and number of another inmate. According to the disciplinary charge, Allah, who was being cleared to leave his cell in order to make a telephone call, failed to comply with procedures that required that he remove his clothing, pass the clothing through a portal, bend over, cough and then step out of the cell. While Allah removed his clothing, as he stepped out of his cell he began to re-dress instead of displaying his orifices to the corrections officer. He was directed to remove his clothing and to perform the procedure properly but refused, resulting in the two refusal charges. He was served with the disciplinary infractions related to those refusals the next day while in pre-hearing detention. Also while in pre-hearing detention, his cell was searched, resulting in the discovery of the stinger and Walkman. As a result, Allah was charged with the two additional disciplinary infractions.
While admitting that he possessed the stinger and the Walkman bearing the name and number of another inmate and not appealing the findings and sanctions imposed in connection with those charges, Allah denied the remaining charges, contending that he fully complied with the procedures for the strip search but that the portable curtain, used to shield inmates from female corrections officers passing by in the area, was not in place, and when he noted this deficiency, the senior corrections officer told him to return to his cell, forfeited his call and filed the charges.
The disciplinary hearing took place on September 21, 2010. Allah appeared at the hearing along with counsel substitute. Allah also presented statements from two other inmates who saw Allah naked on the prison tier and heard an officer state that Allah had refused his phone call. Allah provided a statement at the hearing disputing the version of the events provided by the correction officer. Allah stated that he removed his clothes and complied with the orders, but got into a verbal exchange about the way the search was being conducted, which prompted the senior corrections officer to inform him that he would conduct the search his way, followed by an order that he return to his cell. Allah returned to his cell and the officer stated that he had refused his legal phone call.
The hearing officer briefly adjourned the hearing to make further inquiries regarding the search procedure and later adjudicated the matter that same day, without first sharing with Allah the information she obtained or rendering her decision in his presence. Based upon the reports, as well as the verbal and written reports, the hearing officer found no issues of credibility with the corrections officers and upheld the charges. The hearing officer recommended 10 days' detention, 185 days' administrative segregation, 185 days' loss of commutation credit, and 25 days' loss of recreation privileges. Allah appealed the findings and sanctions imposed to the prison administrator, who sustained the findings and sanctions. The present appeal followed.
Our review of the agency'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) (court must uphold agency's findings, even if "it would have reached a different result," so long as "sufficient credible evidence in the record" exists to support the agency's conclusions).
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 counsel substitute. Id. at 523-29.
Here, because he was charged with an asterisk offense, Allah was afforded counsel substitute. He was afforded an opportunity to present his case before a neutral hearing officer. He declined to confront witnesses. There is nothing in the record to suggest the hearing officer relied upon any improper evidence, and the additional information the hearing officer obtained was consistent with the information previously provided by the senior corrections officer with whom Allah engaged in a dispute about how to conduct the searches. Thus, we are satisfied the hearing comported with Allah's due process rights.
Turning to his contention that his due process rights were violated because he was not afforded a hearing within seventy-two hours of his pre-hearing detention, while Allah is correct that DOC regulations require disposition of the charges within seventy-two hours of being served with the charges, N.J.A.C. 10A:4-9.8, Allah was not prejudiced by the delay and received a fair and full opportunity to defend the charges before the hearing officer.
Allah's claim that he was denied effective assistance of substitute counsel is also unsupported by the record. Inmates charged with asterisk offenses have the "the right to request representation by a counsel substitute." N.J.A.C. 10A:4-9.12(a). Although counsel substitute in prison disciplinary hearings is not equivalent to the constitutional right to formal or retained counsel in non-institutional proceedings, Avant, supra, 68 N.J. at 536-37, it is among the procedural safeguards to which inmates are entitled when charged with major disciplinary infractions. An inmate who receives assistance from a counsel substitute who is not "sufficiently competent" has been effectively denied the due process protections established by the applicable regulations. Id. at 529. In this case, however, Allah never claimed ineffective assistance in his administrative appeal, and even if we are to consider this contention, he presents nothing in the form of certifications, for example, from prospective witnesses or any other evidence from which we could conclude that had he had the benefit of competent substitute counsel, the outcome of the proceedings would have been different. Thus, we reject his claim of ineffective assistance of counsel substitute.
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