Opinion
DOCKET NO. A-0212-11T4
03-27-2013
CARMELO HERRERA, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Carmelo Herrera, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
On appeal from the New Jersey Department of Corrections.
Carmelo Herrera, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney General, on the brief). PER CURIAM
Carmelo Herrera, a Trenton State Prison (TSP) inmate, appeals from the August 30, 2011 final disciplinary decision of the Department of Corrections (DOC). For the reasons that follow, we affirm.
I.
On July 22, 2011, a hearing officer found Herrera guilty of disciplinary infractions *.803/*.002, attempted assault of any person, and *306, conduct which disrupts or interferes with the security of orderly running of the correctional facility, contrary to N.J.A.C. 10A:4-4.1. The charges arise from a lengthy investigation conducted over a period of several years by DOC's Special Investigations Division (SID) into a conspiracy to smuggle narcotics and cellular telephones into the prison, money laundering and staff corruption. A confidential SID investigative report details the ongoing investigation and the manner in which the elaborate conspiracy was executed. SID gathered information through communication data warrants, confidential informants, videotaped interviews, and financial instruments received and cashed.
The SID investigation revealed that Herrera participated in a conspiracy to murder another inmate when he ordered the stabbing of inmate Wilson Morales. Information from a reliable source identified Herrera as the leader of the security threat group (STG) known as the "Latin Kings" and that he ordered the stabbing because Morales failed to deliver illegal drugs to a member of the "Bloods," another STG. The stabbing occurred at TSP on July 4, 2006 in the mess hall.
The SID investigation conducted shortly after the incident initially led DOC to believe that the stabbing occurred as a result of Morales' resignation from the "Latin Kings." However, an investigation targeting drug activities within the prison produced confidential informant information that disclosed the conspiracy, and the specific reason Herrera ordered the stabbing. The investigation and corroborated confidential informant information disclosed that Herrera attended church services with other inmates where he orchestrated the stabbing.
On June 17, 2011, SID charged Herrera with the disciplinary infractions under review. He was served with the disciplinary report on June 17, 2011 for the *.803/*.001 charge, which indicated that an investigation determined that Herrera engaged in a conspiracy with other inmates to kill inmate Morales in the TSP mess hall on July 4, 2006. The disciplinary report for the *.306 charge indicated that as a result of Herrera's activities, all institutional movements had to be stopped and numerous staff members were deployed from their assigned posts to the mess hall to address the stabbing incident.
Herrera was initially charged with *.803/*.001, attempted killing; however, this charge was modified by the hearing officer to *.803/*.002, attempted assault of any person, based on conflicting statements (one statement indicated that Morales was to be stabbed and another indicated he was to be killed).
Herrera's disciplinary hearing began on June 20, 2011, but was postponed because the hearing officer needed to meet with investigators in the SID. Subsequent postponements occurred for the same reason and due to numerous charges. The hearing resumed on July 22, 2011. Herrera requested and received the assistance of counsel substitute. Numerous exhibits were considered by the hearing officer, including confidential summaries of the information documented in SID's confidential investigative report. The hearing officer also reviewed and summarized videotaped confidential informant interviews, and reviewed written objections and requests submitted by Herrera.
The record indicates that SID filed approximately ninety charges in June 2011 as a result of ongoing investigations.
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Herrera pled not guilty. In his defense, he submitted a defense exhibit wherein he requested all records, statements, and reports on the July 4, 2006 stabbing incident. He also requested the identity of all inmates with whom he allegedly conspired, as well as "information that sustains the credibility of the confidential informant." In his statement and request for dismissal of the charges, Herrera claimed that his procedural due process rights were violated. He further claimed that he had nothing to do with the stabbing incident and that he did not conspire with anyone to stab another inmate.
Herrera was offered the opportunity to call witnesses to testify on his behalf as well as the opportunity to confront and to cross-examine adverse witnesses. He declined both offers. He was allowed to review summary reports of information extracted from SID's confidential investigative reports that substantiated the charges. Following the disciplinary hearing, counsel substitute acknowledged, by his signature, that the information contained in lines 1-15 of the adjudication of the disciplinary charge form accurately reflected what took place at the hearing. Due to SID's ongoing investigation, the hearing officer denied Herrera's request for the identity of members of the conspiracy to prevent retaliation and harassment.
Herrera was adjudicated guilty of all charges. As for the *.803/*.002 charge, the hearing officer found that as a result of SID's ongoing investigation, it was determined that Herrera did attend a church service where the "Latin Kings" agreed to undertake the stabbing of inmate Morales, that Herrera did order the stabbing of Morales, and that the stabbing occurred on July 4, 2006 in the mess hall. As for the *.306 charge, the hearing officer found that Herrera's actions caused all activities within the institution to stop and that numerous staff members had to be deployed from their assigned posts to the mess hall to address the stabbing. The hearing officer also noted that this case involved an ongoing SID investigation of the stabbing and other activities, which explained the reasons for the delay.
The hearing officer imposed a combined sanction of fifteen days detention, 365 days of administrative segregation, and thirty days loss of recreation privileges. On August 15, 2011, Herrera administratively appealed the charges, claiming a violation of standards in the administrative code, a misinterpretation of facts, and a plea for leniency. He further contended that he was not issued the disciplinary report within forty-eight hours and that the guilty finding was not based on substantial evidence. He requested that the sanctions be modified or dismissed.
On August 30, 2011, after reviewing the disciplinary hearing record and Herrera's appeal, Assistant Administrator Charles Warren upheld the decision of the hearing officer, finding that "all of the safeguards [in the Department's regulations] were adhered to [and] there were no misinterpretations of the facts. [Herrera's] explanation failed to disclose any valid reason for the extension of leniency. My declaration is that the decision of the hearing is upheld."
This appeal followed.
II.
Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). Nonetheless, prisoners are entitled to certain limited due process 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, a limited right to call witnesses, the assistance of counsel substitute, and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995). The Supreme Court has found that "[t]he current regulations . . . strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.
The scope of the judicial review of an administrative agency's final decision is limited. In re Herrmann, 192 N.J. 19, 27 (2007) (citation omitted). It will be sustained "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28; Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
"A finding of guilt at a disciplinary hearing shall 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." In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (citations omitted). The substantial evidence standard permits an agency to apply its expertise where the evidence supports more than one conclusion. "Where there is substantial evidence in the record to support more that one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting De Vitus v. New Jersey Racing Comm'n., 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).
Herrera claims he was not provided with notice of the charges within [forty-eight] hours as prescribed by N.J.A.C. 10A:4-9.2; however, this claim lacks merit. N.J.A.C. 10A:4-9.2 states, "[t]he disciplinary report shall be served upon the inmate within forty-eight hours after the violation unless there are exceptional circumstances." The record clearly supports a finding of exceptional circumstances because the conspiracy was not uncovered until years after the stabbing. An investigation conducted shortly after the incident initially led DOC to believe that the stabbing occurred as a result of Morales' resignation from the "Latin Kings," with no indication of Herrera's involvement. However, an on-going investigation that specifically targeted drug activities within TSP produced confidential informant information that revealed Herrera's role in the conspiracy and the specific reason he ordered the stabbing. Herrera was notified of the charges on June 17, 2011, and his hearing began on June 20, 2011.
As for Herrera's claim that the finding of guilty was not supported by substantial evidence, the record indicates that the hearing officer conducted a detailed review of SID's confidential investigative report and summarized pertinent information that supported the charges. After reviewing videotaped confidential informant interviews, the hearing officer found the informant testimony to be credible and that the information had been corroborated.
The information established that Herrera conspired with other inmates to stab inmate Morales because he did not deliver drugs to a member of the "Bloods." It was also determined that Morales was stabbed on July 4, 2006, and that the incident caused all movement in the prison facility to stop and correctional personnel had to be redeployed from their assigned posts to address the incident. The record established substantial evidence of Herrera's guilt as to disciplinary infractions *.803/*.002 and *.306.
Finally, Herrera's request for the identity of all inmates with whom he conspired to commit the act and information that established the credibility of the confidential informant was properly denied by the hearing officer, who indicated that "the identities to remain confidential to prevent retaliation." See N.J.A.C. 10A:4-9.14.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION