Opinion
DOCKET NO. A-3453-13T4 DOCKET NO. A-0016-14T4 DOCKET NO. A-0017-14T4
04-05-2016
ROBERT COSME, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Robert Cosme, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from the New Jersey Department of Corrections. Robert Cosme, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief). PER CURIAM
Robert Cosme appeals from three disciplinary determinations, issued by the Department of Corrections (the Department) on February 20 and 28, 2014. We affirm.
Cosme is an inmate serving a ten-year prison term after being convicted for aggravated assault, N.J.S.A. 2C:12-1(b)(3), and making terroristic threats, N.J.S.A. 2C:12-3(b). This appeal arises from a series of incidents that occurred during Cosme's incarceration at Southern State Prison.
On January 28, 2014, a corrections officer observed Cosme screaming in his cell and kicking at his cell door. The officer demanded Cosme stop this behavior, but he refused. These actions formed the basis for a *.256 charge (refusing to obey an order of any staff member) against Cosme pursuant to N.J.A.C. 10A:4-4.1, which was served on him the same day it occurred.
Later that day, Cosme yelled to a corrections officer, "if I don't see mental health, I'm gonna hurt myself!" When the officer returned to Cosme's cell, he observed him with a knotted sheet in his hands. The officer initiated a "Code Sixty-Six" protocol, which is used in the prison to defuse an inmate's suicide attempt. Several officers came to the cell to subdue him. As a result of the incident, a nurse was called to Cosme's cell. This incident formed the basis of a *.306 charge (conduct which disrupts or interferes with the security or orderly running of the correctional facility) pursuant to N.J.A.C. 10A:4-4.1, which was served on Cosme on January 29, 2014.
The third incident occurred on February 16, 2014 when Cosme was in detention as a result of his threats of self-harm. Cosme requested an administrative remedy form, and as a corrections officer walked away to obtain the form, Cosme splashed water out of the sink in his cell and shouted, "ain't no justice here, come on y'all, you know what we need to do, just do it." This activity formed the basis for a *.253 charge (engaging in, or encouraging, a group demonstration) pursuant to N.J.A.C. 10A:4-4.1, which was served on Cosme on February 17, 2014.
The final incident occurred on February 19, 2014. As corrections officers were escorting Cosme back to his cell, he made gun-like hand gestures at one of the officers, and threatened to kill the officer and his family. This formed the basis for a *.005 charge (threatening another with bodily harm or with any offense against his or her person or his or her property) pursuant to N.J.A.C. 10A:4-4.1, which was served on Cosme on February 20, 2014.
Cosme attended three hearings as a result of the four charges. The first occurred on February 19, 2014; the subjects of this hearing were the *.256 and *.306 charges. The other hearings were held on February 26, 2014 (for the *.005 charge) and February 27, 2014 (for the *.253 charge). Cosme was assigned a counsel-substitute for each of his hearings. Cosme requested polygraph evidence for all three hearings; this request was denied. Cosme also requested confrontation with the accusing officers at each of the hearings, this request was only granted at the last hearing because Cosme's confrontation questions were deemed either repetitive or irrelevant. Cosme was permitted to ask questions through the hearing officer at the final hearing. Cosme was permitted to elicit witness statements and make his own statements at the hearings, upon which his counsel-substitute relied. Although Cosme requested video evidence of the incident, the prison was unable to obtain it because of technological issues. After considering the evidence, the hearing officer found that Cosme committed all four prohibited acts. Cosme appealed to the Superintendent and each of the hearing officer's rulings were affirmed. He filed an appeal for each of the hearing decisions, which we consolidated.
Cosme asserts the following arguments on appeal:
POINT I
THE DECISION OF THE HEARING OFFICER VIOLATES DUE PROCESS AND THEREFORE SHOULD BE VACATED.
(a) THE DECISION OF THE HEARING OFFICER SHOULD BE VACATED BECAUSE THERE WAS INSUFFICIENT CREDIBLE EVIDENCE TO SUPPORT THE DETERMINATION.
(b) UNDER THE CIRCUMSTANCES, APPELLANT WAS DENIED THE RIGHT TO COUNSEL SUBSTITUTE.
(c) THE DEPARTMENTAL AGENCY['S] FAILURE TO AFFORD A CIVILIAN COUNSEL SUBSTITUTE VIOLATED DUE PROCESS.
(d) PRISON OFFICIALS' FAILURE TO PROVIDE THE VIDEO RECORDING OF THE INCIDENT VIOLATED DUE PROCESS.
(e) COUNSEL SUBSTITUTE'S FEAR AND FAILURE TO ASSIST APPELLANT WITH QUESTIONS WAS TANTAMOUNT TO A DENIAL OF THE RIGHT TO CROSS-EXAMINATION, CONFRONTATION.
(f) THE ADMINISTRATOR'S DENIAL OF APPELLANT'S REQUEST FOR A POLYGRAPH VIOLATED DUE PROCESS.
This court will only reverse the decision of an administrative agency if it is arbitrary, capricious or unreasonable, or if it is not supported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant are not required in such hearings. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Prisoners are, however, entitled to certain limited protections. Ibid. These protections include written notice of the charges, at least twenty-four hours prior to the hearing; an impartial tribunal which may consist of personnel from the central office staff of the prison; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; the assistance of a counsel-substitute; and a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995); Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995). Each of these requirements has been met in this case.
Cosme asserts his due process rights were violated because his counsel-substitute was ineffective and because the agency failed to assign civilian representation; these claims lack merit. Cosme does not assert that he was denied counsel-substitute, a procedural right which is afforded through regulation. See N.J.A.C. 10A:4-9.12. Rather, he asserts that his counsel-substitutes provided ineffective assistance, due to fear of retaliation. Cosme argues that the hearing officer's decision not to grant his request for a staff representative violates his due process rights, pursuant to N.J.A.C. 10A:4-9.12(c).
We disagree. The United States Supreme Court has long held that prison inmates do not have a due process right to assistance of counsel in an administrative disciplinary proceeding, and hence ineffective assistance concepts do not apply in these matters. See Wolff v. McDonnell, 418 U.S. 539, 569-70, 94 S. Ct. 2963, 2981, 41 L. Ed. 2d 935, 958-59 (1974). Cosme cites no authority supporting his claim that he is entitled to a civilian representative instead of a counsel-substitute. Nor has Cosme provided legally competent evidence that the Department threatened or intimidated his counsel-substitute.
Next, Cosme argues that his due process rights were violated when prison officials failed to provide him with video recordings of the incidents for which he was charged. We disagree. The prison officials attempted to retrieve the video, but the video was unavailable due to technical reasons beyond the officials' control. Indeed, proceedings were adjourned numerous times while officials attempted to retrieve the video evidence. Other procedural protections were available to Cosme, however, he called witnesses and took statements, and was able to confront officers and give statements on his own behalf with the help of counsel-substitute. Such protections are sufficient to satisfy the requirements of due process. See Avant, supra, 67 N.J. at 525-33.
Cosme also argues that he was denied the full protections of due process because he was denied access to a polygraph test. His argument is meritless. Under N.J.A.C. 10A:3-7.1(c), an inmate is not entitled to a polygraph test upon request. Again, we may only reverse an administrator's decision to deny a polygraph test when "that determination is 'arbitrary, capricious or unreasonable.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005) (citing Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997)). A polygraph request must be granted if denial "would compromise the fundamental fairness of the disciplinary process." Id. at 20. In this case, Cosme provided the statements of several witnesses who testified about his credibility, as well as evidence of the events that spurred the disciplinary hearing. Cosme presents no evidence that the absence of a polygraph test made the disciplinary proceedings fundamentally unfair.
Finally, Cosme asserts that the hearing officer's findings are not supported by substantial, credible evidence in the record as required by N.J.A.C. 10A:4-9.15 and the hearing officer failed to consider that all of the accusing officials acted in concert to fabricate disciplinary charges against him. Cosme also argues that the lack of video evidence supported his factual narrative and that these circumstances substantially curtailed his ability to rebut the credibility of the witnesses against him, rendering the Department's evidence per se insubstantial. See Jones v. Dep't of Corrections, 359 N.J. Super. 70, 75 (App. Div. 2003) (explaining that "there can be no determination that the requirements of the substantial evidence rule have been satisfied" if "a party's opportunity to develop and present evidence supporting his challenge to charges filed against him has been unduly curtailed"). We disagree.
As a threshold matter, appellant's citation to Jones, supra, is inapposite here. In Jones, an inmate facing disciplinary sanctions never received the opportunity to cross-examine or confront the officer accusing him of the disciplinary charges he faced. Jones, supra, 359 N.J. Super. at 73-75. The denial of cross-examination and confrontation in that case amounted to a lack of substantial evidence because the credibility of the corrections officer was the determining factor in those proceedings. Id. at 76 (explaining that "[t]he hearing officer's decision was based on a credibility finding favorable to [the corrections officer]."). In this case, the hearing officer based his decision on more than the credibility of the parties in this case. Several witnesses testified and presented written evidence on Cosme's behalf, and he had the opportunity to cross-examine and confront the Department's witnesses.
The hearing officer's decisions were based on substantial, credible evidence in the record. We therefore conclude that the disciplinary actions were based on substantial credible evidence on the record and were not arbitrary, capricious or unreasonable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION