January 14, 2013
LAMONT TOWNS,*FN1 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fuentes and Hayden.
In this prison discipline case, inmate Lamont Towns appeals from the final determination of the Department of Corrections (DOC) finding that Towns committed Prohibited Act *.011 by possessing security threat group materials concerning the Bloods. We affirm.
Towns is currently incarcerated at the New Jersey State Prison (NJSP)
at Trenton, serving a life sentence for murder. On November 10, 2011,
after a search of Towns' cell, the prison staff removed a case
containing twenty-four computer discs. When the discs were inspected
the following day, one disc, labeled "Brothers 2000," appeared to
contain STG material relating to the Security Threat Group*fn2
(STG) known as the "Bloods" and a second disc, labeled
"Supreme Science," contained material relating to the STG known as the
"Five Percent Nation."
After being charged with Prohibited Act *.011, Towns requested a hearing. The hearing began on November 14, 2011, wherein Towns pled not guilty and was given the assistance of a counsel substitute. Townes declined the opportunity to make a statement, present witnesses or confront adverse witnesses. The hearing was adjourned for a report from the Special Investigations Division (SID) concerning the content of the seized material. On November 15, 2011, a SID investigator reviewed a document from the disc labeled "Brothers 2000." Based upon his specialized STG training and expertise, the investigator determined in a written report that the document related to the Bloods STG because it concerned two Blood sects - the Nine Trey Gangsters and the Sandstone Hillside Beehive - and contained specific codes of conduct and rules that members must follow in order to be affiliated with the Sandstone Hillside Beehive.
On November 16, 2011, the hearing officer found Towns guilty of the charge and sanctioned him with fifteen days detention, 365 days administrative segregation, 180 days loss of commutation time, and thirty days loss of recreation privileges. Towns immediately appealed. On December 16, 2011, the Assistant Superintendent issued the final agency decision, which upheld the hearing officer's decision. This appeal followed.
On appeal, Towns raises the following arguments:
POINT I - APPELLANT WAS DENIED DUE PROCESS REQUIRED BY THE NEW JERSEY ADMINISTRATIVE CODE
(A) HEARING OFFICER DENIED APPELLANT'S DUE PROCESS PURSUANT TO N.J.A.C. 10A:9-12(A) & (D).
POINT II - THE HEARING OFFICER ERRED BY FINDING OF GUILT WHICH WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE PURSUANT TO N.J.A.C. 10A:4-9.15.
POINT III - HEARING OFFICER ERRED BY FINDING APPELLANT GUILTY OF POSSESSING GANG RELATED MATERIALS WHEN APPELLANT CLEARLY SHOWED THAT THE MATERIALS IN QUESTION WERE OBTAINED THROUGH PROPER INSTITUTIONAL CHANNELS WHICH MEANS THAT APPELLANT HAD THE TACIT APPROVAL TO POSSESS THE MATERIALS BY PRISON AUTHORITIES.
Our review of the agency's decision here is limited. In reviewing a final DOC decision, we will defer to the agency's conclusions so long as the decision is not arbitrary or capricious and is supported by substantial credible evidence. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). When reviewing a DOC prison discipline decision, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the DOC followed the regulations adopted to afford inmates due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995). Moreover, so long as the agency provides a sufficient explanation for its conclusions, we will defer to the agency's expertise in determining whether materials are gang-related. Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003).
Prison disciplinary hearings are not criminal prosecutions and the full spectrum of rights due a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). However, prisoners are entitled to certain limited protections prior to being subject to discipline, including written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal from the central office staff; a limited right to call witnesses and present documentary evidence; a limited right to confront adverse witnesses; a written statement of reasons for the decision and the sanctions; and, in complex cases, assistance of a counsel substitute. Id. at 525-33.
Here, the agency found that the requirements of Avant were met. We agree. According to the hearing officer's report, confirmed by the signature of Towns' counsel substitute, Towns had the requisite notice of the charges, was afforded a counsel substitute, and was provided with opportunities to make a statement, call witnesses, and confront adverse witnesses, which were all declined. Towns' belated claim that the hearing officer refused to allow him to submit evidence is not supported by the record. Rather, the record fully supports the agency finding that Towns received the due process necessary for a prison disciplinary hearing.
Every correctional facility has a manifest need to control the population and maintain security and order. See McDonald, supra, 139 N.J. at 194. In addition to the generalized need for maintaining order, both the courts and the correctional institutions have recognized the urgent need to address the specific threat to prison order and security posed by gang activity. See Wilkinson v. Austin, 545 U.S. 209, 227, 125 S. Ct. 2384, 2396, 162 L. Ed. 2d 174, 192-193 (2005) ("[G]angs seek nothing less than to control prison life and to extend their power outside prison walls."). In 1998, the DOC responded to the gang problem by promulgating a policy for the management of STGs and issuing regulations including the prohibition of STG material at issue here. See Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 253 (App. Div. 2010).
Here, Towns was charged with violation of Prohibited Act *011, which is "possession or exhibition of anything related to a security threat group." N.J.A.C. 10A:4-4.1. Further, the regulations proscribe "activity(ies) or action(s) of an inmate that relate either directly or indirectly to the goals of a security threat group" and preclude "[p]ossession of security threat group literature, such as correspondence, newsletters, publications, lessons, membership lists, and manuals . . . ." N.J.A.C. 10A:3-11.2.
Thus, the administrative code provided notice that possession of literature relating directly or indirectly to the STG falls within the prohibition. We note that the regulation does not provide the exception claimed by Towns that such literature may be possessed for the purpose of researching gangs in prison. As the credible evidence demonstrated that the material reviewed by the SID investigator related to the Bloods STG,*fn3 we agree with the DOC that Towns possessed material prohibited by *.011. Accordingly, we are satisfied that the agency decision is supported by sufficient credible evidence.
Finally, Towns makes the astonishing contention that he had the "tacit approval" of DOC to possess the STG material because the discs containing the STG material were allowed into the facility. We reject this argument as unsupported by anything in the record and find it without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).