Opinion
DOCKET NO. A-0663-13T1
04-27-2015
EARL M. BETTERSON, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Defendant.
Earl Betterson, appellant, pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alex J. Zowin, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from the New Jersey Department of Corrections. Earl Betterson, appellant, pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alex J. Zowin, Deputy Attorney General, on the brief). PER CURIAM
Earl M. Betterson, an inmate at Northern State Prison in Newark, appeals from the final decision of the Department of Corrections (DOC) imposing disciplinary sanctions for violating N.J.A.C. 10A:4-4.1(a), *.010, "participating in an activity related to a security threat group [STG]." He raises two points on appeal:
POINT IWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE HEARING OFFICER FAILED TO INVESTIGATE THE APPELLANT'S STATEMENT AND REVIEW EVIDENCE THAT THE SPECIAL INVESTIGATION DIVISION (SID) THREATENED AND FORCED HIM TO SIGN A DOCUMENT STATING THAT HE IS AFFILIATED TO THE BLOODS.
POINT II
THE HEARING OFFICER COMMITTED A DUE PROCESS VIOLATION WHEN SHE FAILED TO PROVIDE EVIDENCE THAT THE APPELLANT PARTICIPATED IN AN ACTIVITY RELATED TO A SECURITY THREAT GROUP, AND WHEN SHE FAILED TO MAKE AN INDEPENDENT ASSESSMENT OF THE CONFIDENTIAL INFORMATION.
Betterson is currently serving a thirty-year sentence with a twenty-five-year mandatory-minimum for aggravated manslaughter. On July 31, 2013, Betterson engaged in a fight in the mess hall. Inmate Jerome Mercer, a member of the IMG/West Coast Bloods, was verbally attacked by inmates representing a faction of the East Coast Bloods. According to the statement he provided to SID, Betterson, also a member of IMG, intervened to defend Mercer's legitimacy. Betterson threw the first punch because Mercer, his superior in the gang, had been "disrespect[ed]."
After separate interviews with other involved prisoners and a confidential informant, SID determined that the fight was related to an STG, specifically, rival sets of the Bloods. A letter confiscated from the cell of one assailant supported SID's findings regarding the relationship between the fight and factions of the Bloods. Betterson was subsequently charged with the *.010 offense on August 6, 2013.
A "Security Threat Group" is defined as "a group of inmates possessing common characteristics, interest and goals which serve to distinguish the group members from other inmate groups or inmates and which, as a discrete entity, poses a threat to the safety of the staff, other inmates, the community, or causes damage to or destruction of property, or interrupts the safe, secure and orderly operation of the correctional facility(ies)." N.J.A.C. 10A:5-1.3.
At his August 7 disciplinary hearing, Betterson pled not guilty and requested the assistance of counsel-substitute, which he received. The hearing was then delayed twice because the Hearing Officer requested more information from SID regarding their STG investigation.
When the hearing resumed on August 12, Betterson declined to call any witnesses or confront or cross-examine adverse witnesses. Without directly denying being involved with an STG, Betterson's sole defense was his assertion: "[SID] said if I signed a paper I wouldn't get a charge. I feel like I was trick[ed]. I saw my brother in a jam, I came to his aid. He was my friend." Counsel-substitute argued that all of the evidence against Betterson amounted to hearsay.
The hearing officer found Betterson guilty. She noted that SID interviewed Betterson and Mercer, who "admitted the fight started over one inmate making gang related comments to another inmate and they had to finish the confrontation." Although she did not provide Betterson the confidential SID records, she summarized them for him pursuant to N.J.A.C. 10A:4-9.15, and noted, again, that he declined to call his own witnesses to disprove SID's conclusions. The hearing officer then sentenced Betterson to 10 days detention with credit for time served, 180 days of administrative segregation, 180 days of loss of commutation time, and 30 days of loss of recreation privileges.
Betterson filed an administrative appeal on August 13, claiming due process violations and insufficient evidence. DOC Assistant Superintendent Colm Foley upheld the hearing officer's findings and sanctions on August 19, 2013, and this appeal followed.
We begin by acknowledging that our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (second alteration in original) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We have noted that the Legislature has provided DOC with broad discretion in all matters regarding the administration of a prison facility, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).
"[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). We are not "relegated to a mere rubber-stamp of agency action," but rather we must "engage in careful and principled consideration of the agency record and findings." Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quotation and citations omitted).
DOC's regulations require any "finding of guilt at a disciplinary hearing [] be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). "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) (quotations omitted).
In the present case, SID presented the hearing officer with the interviews of the six combatants and a summary of their conclusions. The hearing officer also received the confiscated letter and the analysis of DOC's gang expert regarding the hidden meanings of language therein. Evaluating these, and without any contrary evidence other than Betterson's self-serving statement, she found Betterson guilty and imposed a proportionate sentence. The reviewing superintendent upheld the findings and sanctions in all respects.
Although in the present appeal Betterson claims that SID coerced him into signing a declaration of his Bloods affiliation using threats of prison transfer, this claim is wholly unsupported. No such confession or document was presented to nor considered by the hearing officer in determining Betterson's STG status, and no signed statement is in the record before us. To the extent that Betterson argues he was "under duress" when he spoke to SID, or that SID threatened him at all, there is no evidence in the record to support this claim. Betterson offered no witnesses or argument to this effect at his hearing and presents no evidence in the record now, rendering these claims meritless.
Betterson also claims a due process violation by the hearing officer, in that she "failed to make an independent assessment of the confidential information" and denied him access to the evidence against him.
In Avant v. Clifford, 67 N.J. 496 (1975), the Supreme Court of New Jersey assigned prisoners limited due process protections prior to their subjection to discipline. These protections include written notice of the charges and timely adjudication; a hearing before an impartial tribunal; representation, if requested, by counsel-substitute; a limited ability to call witnesses or confront adverse witnesses; and a limited ability to present documentary evidence. Id. at 525-30. Post-hearing,
a written statement of the fact-findings is given to the inmate by the hearing officer . . . as to the evidence relied upon, decision and the reason for the disciplinary action taken unless doing so would jeopardize institutional security. The written statement also indicates the reason for refusing to call a witness or to disclose items of evidence whether it be for irrelevance, lack of necessity or the hazards presented in individual cases.
[Id. at 533 (citation omitted).]
The record clearly reflects that Betterson was afforded all due process protections. Betterson was given the opportunity to present witnesses and evidence supporting his position and to confront adverse witnesses, all of which he declined.
Moreover, in her written decision, the hearing officer assessed the credibility of the evidence, the reasons for withholding access to confidential information, and support for her findings of Betterson's guilt. Beyond his due process right to this detailed disposition, Betterson was not entitled to access the statements or evidence against him, which DOC determined would put other inmates "in danger of being targeted" for retribution.
Based upon our review of the record, we are convinced that the charge against Betterson was supported by substantial credible evidence, and DOC's decision was not arbitrary, capricious or unreasonable. We further conclude that Betterson received all due process protections afforded him.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION