January 8, 2013
ROBERT LEE TERRY, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 December 12, 2012
Before Judges Grall and Simonelli.
Robert Lee Terry, an inmate presently confined at New Jersey State Prison, appeals from an adjudication of disciplinary infractions for acts prohibited by N.J.A.C. 10A:4-4.1(a) - .052, making sexual proposals or threats to another and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility.
The .052 charge was based on a report filed by Senior Corrections Officer Alvarez. She asserted that at about 5:40 p.m. on December 23, 2010, Terry greeted her as they passed in the hallway of the prison and she ignored him. Terry responded, "Fuck you, I'll shove my dick in your mouth, don't ever ignore me again."
The *.306 charge was based on the report of Sergeant Bundy indicating that upon receipt of the report of the .052 charge, he and two other officers went to Terry's cell, escorted him to the prison clinic for clearance prior to admission to pre-hearing detention, conducted a strip search and placed him in a cell, all without incident.
Terry was served with notice of the infraction on December 25, 2010. The first hearing was scheduled for December 28, five days after Terry was placed in pre-hearing detention and three days after he received notice of the charges. That hearing was postponed until December 29, and the reason given was "excessive charges." On December 29, counsel substitute was assigned and the hearing was adjourned because Terry's counsel substitute exercised his right to confrontation. Questions for confrontation relating to SCO Alvarez's bias and motive for filing the .052 charge were submitted. The record indicates, however, that Terry withdrew his request to confront SCO Alvarez on January 7, the date of the final hearing.
Terry identified one witness, inmate Gaskins. Gaskins stated that the allegation was false, that the conversation was appropriate and that no sexual proposals were mentioned. According to Terry, SCO Alvarez was in the hallway and he said, "How are you doing?" She said, "Don't talk to me," and he said, "I know what you did last summer."
The hearing officer recounted the reports summarized above. Noting that staff had nothing to gain by falsifying a report, and that Gaskins had not elaborated on what was said, the hearing officer determined that the charge was substantiated and recommended fifteen days' detention, thirty days' loss of recreational privileges and ninety days' administrative segregation.
The hearing officer made no findings on the *.306 charge - conduct disrupting the security or orderly running of the correctional facility. She reduced that charge to an on the spot correction and imposed a sanction of five days' loss of recreational privileges.
Terry filed an appeal with the prison administrator, contending that SCO Alvarez made up the .052 charge because of a problem she and he had in May 2010. The appeal form lists several options for the basis of appeal, but the list does not include inadequacy of the evidence. Terry checked the entry indicating that his appeal was based on "misinterpretation of the facts."
The assistant superintendent denied his appeal on three grounds: 1) the appeal was filed on February 24, 2011 and untimely;
2) the Department's regulations and "all the safeguards therein were adhered to"; and 3) the hearing officer extended leniency in reducing the *.306 charge to on the spot correction.
Defendant raises two issues for our consideration:
I. THE FINAL ADMINISTRATIVE DECISION BELOW MUST BE REVERSED AND VACATED FOR LACK OF SUBSTANTIAL EVIDENCE SINCE THERE IS NO INDEPENDENT EVIDENCE TO SUPPORT THE ALLEGATION OF A N.J.A.C. 10A:4-4.1(a) - .052 DISCIPLINARY INFRACTION.
II. THE DECISION BELOW MUST BE REVERSED AS THE APPELLANT WAS DENIED THE DUE PROCESS SAFEGUARD OF COUNSEL SUBSTITUTE TO AID IN PRESENTING A DEFENSE, AS PROVIDED BY N.J.A.C. 10A:4-9.12, DIRECTLY RESULTING IN THE APPELLANT BEING FOUND TO HAVE COMMITTED A PROHIBITED ACT FOR WHICH NO SUBSTANTIAL EVIDENCE WAS PRESENTED.
"[D]isciplinary actions against inmates must be based on more than a subjective hunch, conjecture or surmise of the factfinder. Indeed, a disciplinary hearing officer's adjudication that an inmate committed a prohibited act must be based on substantial evidence in the record." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010); see N.J.A.C. 10A:4-9.15(a); Jacobs v. Stephens, 139 N.J. 212, 222 (1995). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. at 192 (quoting In re Pub. Serv. Electric & Gas Co., 35 N.J. 358, 376 (1961)).
Terry was accused of a prohibited act that amounted to "making sexual proposals or threats to another." The evidence consisted of nothing more than SCO Alvarez's report, Terry's denial and the statement of his eyewitness supporting his denial. On this record, it is not clear whether Gaskins and Terry testified at the hearing or the hearing officer simply relied on their written statements.
In any event, the hearing officer made no finding on the credibility of either inmate. Instead, the hearing officer resolved the credibility dispute solely on the assumption that corrections officers have no reason to fabricate allegations against inmates. That assumption was the only basis for the hearing officer's conclusion that the charge was established.
A presumption of the credibility of an officer's allegation has an impact on the fairness of the hearing. "[T]he impartiality of the hearing tribunal" is important to the procedural fairness required in prison disciplinary proceedings. Avant v. Clifford, 67 N.J. 496, 525 (1975). By accepting a finding of disputed material fact that rests on nothing other than an assumption that a corrections officer has no reason to lie, a reviewing court would substantially undercut the interests in procedural fairness fostered by affording inmates hearings before a "neutral and detached" factfinder. Id. at 525. See generally State v. Frost, 158 N.J. 76, 85-86 (1999) (disapproving prosecutors' arguments urging jurors to credit the testimony of police officers because police officers have reasons to tell the truth and no reasons to lie, on the ground that such arguments distract jurors from their obligation to weigh the evidence impartially).
In effect, where the proofs of the charged infraction turn on credibility, reliance on an assumption that statements of inmates are less credible than those of corrections officers unreasonably limits the inmate's access to witnesses in his favor, depriving him of a fair hearing. See Jones v. Dep't of Corr., 359 N.J. Super. 70, 78 (App. Div. 2003) (reasoning that "[a] proceeding in which the right of confrontation and cross-examination has been unduly curtailed, or the accused unreasonably limited in his access to witnesses in his favor, lacks both the form and substance of a fair hearing"). While Terry apparently asserted and then waived his right to confront SCO Alvarez, an inmate may provide a defense by presenting conflicting evidence or by confronting and cross-examining the adverse witnesses. See ibid.
We do not suggest that a hearing officer may not rely on an undisputed written statement of a corrections officer who is the object of a threat, or that a hearing officer who has heard testimony of an accused inmate and his witness or witnesses cannot discredit that testimony. But the hearing officer in this case did not do either of those things.
Our concern about the adequacy of the evidence supporting the .052 charge is further exacerbated by the decision of the assistant superintendent addressing Terry's administrative appeal. Terry challenged the hearing officer's interpretation of the facts, and contended, as he had before the hearing officer, that the allegations were false. The assistant superintendent's decision does not indicate that he gave any consideration to the adequacy of the evidence supporting the hearing officer's critical credibility determination.
For the foregoing reasons, we reverse the decision upholding discipline based on the charge that Terry committed prohibited act .052. Given our decision on the inadequacy of the evidence, we need not address Terry's objections to the performance of his substitute counsel or to the delay in his hearing.
We also reverse the hearing officer's decision to convert the *.306 charge to on the spot correction. On the spot correction is an option "[w]hen a violation of a prohibited act that is considered minor has occurred." N.J.A.C. 10A:4-7.1. It is not available unless there is a violation of a prohibited act. The prohibited act charged was "conduct which disrupts or interferes with the security or orderly running of the correctional facility." This charge rests on nothing other than the routine steps corrections officers take when an inmate is placed in pre-hearing detention, which the officer in charge indicated were accomplished without incident. Neither the hearing officer nor the assistant superintendent identified facts supporting a finding of anything Terry said or did that posed a threat to security or the orderly running of the facility during his transfer.
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