Opinion
DOCKET NO. A-6162-10T3
03-27-2013
COREY MORRIS, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Corey Morris, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from the New Jersey Department of Corrections.
Corey Morris, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief). PER CURIAM
Corey Morris appeals from a final decision of the Department of Corrections finding he committed prohibited acts *.704 "perpetrating frauds, deceptions, confidence games, riots or escape plots" and .701 "unauthorized use of mail or telephone" in violation of N.J.A.C. 10A:4-4.1(a). Morris was sanctioned on the *.704 charge to 15 days' detention, 180 days' administrative segregation, 180 days' loss of commutation time, and 30 days' loss of recreation privileges. On the .701 charge, he was sanctioned to fifteen days' detention and 365 days' loss of telephone privileges. See N.J.A.C. 10A:4-5.1(a), (b).
The Department's evidence was gathered by an officer of its Special Investigation Division (SID) in the course of a several-year investigation, undertaken in conjunction with the Mercer County Prosecutor's Office and the Trenton Police Department, into the smuggling of narcotics into New Jersey State Prison. The investigation resulted in the indictment of twelve individuals, many of them inmates, including inmate Anthony Kidd, who was indicted for leading a narcotics trafficking network. SID Investigator Raphael Dolce reported that on March 27, 2006, Morris initiated a telephone call to a person outside the prison who then placed a third party call to the prison switchboard, whereby Morris, posing as Kidd's brother, spoke to a prison official in order to manipulate a telephone call for Kidd. Although Dolce reported these facts in an interim report of May 15, 2008, the final report of the investigation was not issued until July 19, 2011.
Morris was charged on June 17, 2011. The hearing was adjourned to allow the hearing officer to review the confidential SID report and the audiotape of the call. Morris requested to confront Investigator Dolce with respect to the timing of his report and the charges, and Jane Doe (administrative secretary Cruz), the prison official who answered the telephone, about her recollection of the call. The hearing officer denied both requests on the basis that the information sought would be repetitive of evidence produced at the hearing.
At the hearing, Morris was provided with the hearing officer's notes of her review of the confidential SID files, a written summary of the telephone call, and the prison rules and regulations for telephone calls, all of which were admitted into evidence. An audiotape of the call was played for Morris and his counsel substitute and also admitted into evidence. After listening to the tape, Morris declined to make a statement.
On appeal Morris argues:
POINT I:
THE HEARING OFFICER'S REFUSAL TO ALLOW APPELLANT THE RIGHT TO CONFRONTATION AND CROSS-EXAMINATION OF THE WITNESSES DENIED HIM DUE PROCESS OF LAW.
POINT II:
THE HEARING OFFICER SHOULD HAVE GRANTED APPELLANT'S REQUEST TO DISMISS THE TIME-BARRED .701 AND *.704 CHARGES UNDER THE 48-HOUR RULE.
POINT III:
THE HEARING OFFICER ERRED IN FAILING TO MODIFY [THE] *.704 CHARGE TO A .305 (LYING, PROVIDING A FALSE STATEMENT TO A STAFF MEMBER).
POINT IV:
THE HEARING OFFICER'S REFUSAL TO ALLOW APPELLANT'S DISCIPLINARY PROCEEDINGS TO BE AUDIO CASSETTE TAPE RECORDED DENIED HIM DUE PROCESS OF LAW.
POINT V:
THE SANCTION OF 365 DAYS LOSS OF TELEPHONE PRIVILEGES SHOULD BE MODIFIED TO 30 DAYS ON THE .701 CHARGE.
We are satisfied that the Department substantially complied with the procedural requirements set forth in Avant v. Clifford, 67 N.J. 496, 525-33 (1975), and N.J.A.C. 10A:4-9.1 to -9.28. Morris was provided with a written summary of the hearing officer's notes of the recorded call, and an audiotape of the call was played at the hearing. The confidential investigation report does not include any information beyond what was provided to him. In light of an actual tape of the call having been played at the hearing, the hearing officer's decision to deny Morris the ability to confront Dulce or Cruz about it was not unreasonable. N.J.A.C. 10A:4-9.14(b)(3) (hearing officer may refuse confrontation and cross-examination if it is "[l]ikely to produce repetitive testimony"). Morris had no right to have the hearing recorded. McDonald v. Pinchak, 139 N.J. 188, 202 (1995).
Although there was a very long delay in charging Morris for these prohibited acts, N.J.A.C. 10A:4-9.2 allows a delay in the normal 48 hour service of a disciplinary report upon an inmate in the case of "exceptional circumstances." Such circumstances were clearly present here. First, Morris's disciplinary infraction was not uncovered until some time after its occurrence. More important, it was discovered in the course of a joint investigation between SID officials and outside law enforcement agencies into narcotics smuggling at the prison. The discovery of Morris's infraction was a small part of a very far-ranging investigation which took several years and resulted in multiple criminal indictments. We have no difficulty in finding that these circumstances qualify as exceptional under the rule.
Moreover, N.J.A.C. 10A:4-9.9 provides that the failure to adhere to the time limit does not mandate dismissal of a disciplinary charge, even in the absence of exceptional circumstances. Instead, the decision-maker is to consider the length and reason for the delay, the seriousness of the infraction and any prejudice to the inmate in preparing his defense. Ibid. Here, as we have noted, the delay was warranted by the on-going investigation. Considering the seriousness of assisting Kidd in his narcotics smuggling operation, and the lack of any prejudice to Morris, we are satisfied that the charge should not have been dismissed for failure to serve him within 48 hours of the violation. Negron v. N.J. Dep't of Corr., 220 N.J. Super. 425, 429 (App. Div. 1987). We agree there was no need to confront Dolce on the timing of the charge on these facts.
We have no question that the evidence was adequate. The recorded phone call provided ample support for the hearing officer's determination of defendant's guilt. We see no basis for Morris's argument that the *.704 charge should have been downgraded to a non-asterisk .305 charge for "lying, providing a false statement to a staff member." N.J.A.C. 10A:4-4.1(a). N.J.A.C. 10A:4-9.16 requires modification of only incorrectly charged prohibited acts. Although Morris could have been charged for the less-serious offense of lying to a staff member, the *.704 charge of perpetrating a fraud or deception was also manifestly appropriate and proved at the hearing. His 365 days' loss of telephone privileges, as approved by the Institutional Classification Committee, is a permitted sanction on the .701 charge pursuant to N.J.A.C. 10A:4-5.1(g)(6).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION