Opinion
DOCKET NO. A-1557-13T3
10-15-2015
JOHN BERNECK, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
John Berneck, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the New Jersey Department of Corrections. John Berneck, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
On or about September 9, 2013, an envelope addressed to M.W. was deposited in outgoing mail at the Department of Correction's (DOC) Adult Diagnostic and Treatment Center in Avenel. Since the envelope did not indicate its sender, it was intercepted and opened by a corrections officer in order to identify the sender. Inside the envelope was a handwritten letter signed "Love John." The letter included the following comments:
The photocopy of the letter contained in the record was not entirely clear. We indicate the indecipherable sections, and present the spelling and capitalization as it appears in the letter.
So Let's See carrie and Amanda are Sayen my grand Son is my Son and 2 of my Kids with EllEN aint mine (indecipherable) ill tell you i cant wait to get out i got So much Pay Back (indecipherable) and trust me ill get my PayBack All of it (Amanda Carrie KC and KC (indecipherable) Boyfriend) All of them idc if it Puts me Back in Prison it's not that Bad Here fuck it my Life is over anyways Aint it?The statement was thought to be a threat, so it was turned over to the Special Investigations Division to investigate.
Meaning "I don't care" according to a notation in different handwriting on the margin of the copy of the letter. --------
The investigation identified inmate John Berneck as the writer of the letter, with the recipient being his girlfriend who lived out-of-state. Berneck admitted that he wrote the letter but was just "blowing off steam and meant nothing serious about what he wrote" about his family members. However, he was charged with prohibited act *.005, "threatening another with bodily harm or with any offense against his or her person or his or her property," in violation of N.J.A.C. 10A:4-4.1(a).
On September 13, a disciplinary hearing began but was postponed to provide appellant and his counsel substitute additional time to prepare. The hearing was continued on September 16, without Berneck submitting any witnesses or confronting any adverse witness. His counsel substitute contended there was no threat and action taken. The hearing officer determined that Berneck's comment constituted a violation of *.005, specifically noting:
[Inmate] said he was angry because his daughter is not taking care of the baby. Inmate clearly identifies in his own words, writing, and conversation to the [hearing officer] who each person in the letter is, he threatens to do them in (his children's mother, an [ex-]girlfriend, his victim and the victim's boyfriend). Note he clearly states there is a victim #C (KC), not that there is an alleged victim. This threat is serious enough that it should be followed up with the intended victims and notify them of his intent and expression of what he wants to do upon release.Berneck was given fifteen days detention, 365 days administrative segregation, 365 days loss of commutation time, and fifteen days loss of recreation privileges.
Berneck filed an administrative appeal arguing that the evidence against him was not admissible. Specifically, he contended that his due process rights were violated when officials opened his mail; as a result, the letter's contents should have been suppressed as fruit of the poisonous tree. He also reiterated his contention that he was blowing off steam and was not making any threats to harm anyone. The hearing officer's decision was upheld as being based on substantial evidence. This appeal followed.
Before us, Berneck raises the following points on appeal:
POINT IBased upon our review of the record and applicable law, we affirm.
THE MAILROOM OFFICER VIOLATED PROCEDURAL DUE PROCESS WHEN HE OPENED [APPELLANT'S] LETTER.
POINT TWO:
THE ACT THAT [APPELLANT'S] WAS CHARGED WITH ONLY APPLIES TO OTHER INMATES WITHIN THE PRISON.
Our review of agency action is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or 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) (citation omitted). Substantial evidence needed to sustain guilt of an infraction is "such evidence [that] a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961) (citations omitted). We are obligated to give deference to credibility determinations made by the fact finder. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). However, we do not rubber stamp its decisions. In re Taylor, 158 N.J. 644, 657 (1999). 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).
Berneck first contends that his rights were violated based upon the principles set forth in Procunier v. Martinez, 416 U.S. 396, 414, 94 S. Ct. 1800, 1811-12, 40 L. Ed. 2d 224, 240 (1974) (a regulation or practice to censor inmate mail must be based upon certainty that it is "necessary to protect one or more. . . legitimate governmental interests") and United States v. Ligambi, 886 F. Supp. 2d 492, 496 (E.D. Pa. 2012) (New Jersey prison regulations permit the opening and reading of "outgoing inmate correspondence where [prison officials] have reason to believe that the correspondence may contain information concerning criminal activities"). He argues that his mail should not have been opened because there was no reason to believe it contained any disapproved content as set forth in N.J.A.C. 10A:18-2.14. He also contends that the correspondence should have been destroyed and not opened because it lacked the sender's name on the outside. These arguments are without merit.
Here, DOC's actions were based upon N.J.A.C. 10A:18-2.9. The regulation entitled "Identification of sender of outgoing correspondence," expressly authorized opening the letter, providing:
(a) The inmate's name and number or the name of the inmate group shall appear legibly on the outside of all outgoing correspondence.Since the outside of Berneck's envelope did not identify a sender, DOC had the right to open and review its contents in order to identify the sender.
(b) If an inmate's name and number or the name of the inmate group does not appear on the outside of the correspondence, it shall be opened and examined to identify the sender so that the correspondence can be returned to the inmate or inmate group.
(c) If the inmate or inmate group cannot be identified, the correspondence shall be destroyed.
(d) The full name of the correctional facility shall be clearly stamped or printed in the upper left corner of all outgoing envelopes from inmates or inmate groups.
[N.J.A.C. 10A:18-2.9.]
As to the merits of DOC's finding that Berneck made threats in violation of *.005, Berneck contends that only offenses committed by an inmate to another inmate are covered by DOC's regulations. We reject this argument. We see nothing in the regulation that would lead us to conclude that threats by inmates against non-inmates is not within the purview of *.005. See Jacobs v. Stephens, 139 N.J. 212, 223-24 (1995) (inmate violated *.005 by making threats against corrections officer). We also reject Berneck's contention that there was no threat because the letter was intercepted and never made it to its destination.
An inmate charged with *.005 threatening bodily harm in violation of N.J.A.C. 10A:4-4.1(a), is guilty "[w]hen [his] words [] are of such a nature as would reasonably convey the menace or fear of death to the ordinary hearer[.]" Jacobs, supra, 139 N.J. at 224. In Jacobs, a reasonable mind could clearly conclude that the inmate's comment "come on, come on, I'll fuck you up," was a threat. Id. at 223.
Based upon the objective analysis required by Jacobs, we conclude that Berneck's comments constitute a clear threat in violation of *.005. By itself, the statement that Berneck wanted "payback" against certain family members is unclear. However, followed by the statement that, he does not care if his payback puts him back in jail, leads a reasonable person to conclude that Berneck was intending to threaten his victims with bodily harm or an offense against their person or property. Accordingly, DOC's decision is not arbitrary, capricious or unreasonable, and is based upon substantial credible evidence that a *.005 violation occurred.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION