Opinion
DOCKET NO. A-5870-10T4
04-11-2013
DANIEL DELGADO, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Daniel Delgado, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from New Jersey Department of Corrections.
Daniel Delgado, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief). PER CURIAM
Appellant Daniel Delgado, a New Jersey State Prison (NJSP) inmate serving a maximum forty-year prison term for convictions of murder and unlawful possession of handguns, appeals the June 22, 2011 decision of the Department of Corrections (Department) imposing discipline for his attempted possession or introduction of any prohibited substances. N.J.A.C. 10A:4-4.1(a); *.803/*.203. Delgado was sanctioned to fifteen days detention, with credit for time served, 300 days administrative segregation, a 300-day loss of commutation time, a thirty-day loss of recreational privileges, permanent loss of contact visits and 180 days of urine monitoring.
Delgado was also charged with prohibited act *.202, "possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool[,]" because a tube with a needle melted to its end was found in the search of his cell. Delgado states that this charge was downgraded to .210, having possession of something unauthorized for retention.
On appeal, Delgado argues that he was improperly given pre-hearing detention, the charge was improper, the hearing officer rendered an arbitrary and capricious finding of guilt not supported by substantial evidence and that he was entitled to a handwriting analysis of the note found in his cell. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On May 17, 2011, Senior Corrections Officer (SCO) J. Maze conducted a search of Delgado's single-man cell and found handwritten notes that included different names and addresses and included the phrases "St 2 St (150.00)," "I should have between 30 & 40 bags[,]" and "I gonna bring it in as low as I can-dig?"
The notes were reviewed by Senior Investigator Nancy Zook of the Special Investigations Division, NJSP. Zook opined that in her experience "this type of information and terminology" in the notes "is used by inmates in order to procure narcotics and other forms of prohibited contraband . . . ." She found that the phrases "between 30 & 40 bags" and "I gonna bring it in as low as I can" were "consistent with trafficking of illegal narcotics."
After a hearing at which Delgado was afforded the services of a counsel substitute, he was found guilty of the charge. This decision was upheld by the Department because the administrative appeal was filed out of time without good cause, and all proper procedural safeguards had been afforded Delgado.
On appeal, Delgado raises the following issues:
POINT I: THE APPELLANT DID NOT MEET ANY OF THE EIGHT CRITERIA THAT MUST BE CONSIDERED[] UNDER N.J.A.C. 10A:4-10.1 (a)(b)(c) 1-9 FOR PRE-HEARING DETENTION. APPELLANT'S PLACEMENT IN PRE-HEARING DETENTION DENIED THE APPELLANT OF ALL PROCEDURAL DUE PROCESS PROTECTIONS UNDER [WOLFF V. MCDONNELL, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)].
POINT II: THE PROHIBITED ACT DESCRIBED BY THE DEPARTMENT OF CORRECTIONS, REGARDING THE APPELLANT ATTEMPTING TO POSSESS A POSSIBLE CONTROL[LED] DANGEROUS SUBSTANCE DOES NOT EXIST WITHIN THE NEW JERSEY ADMINISTRATIVE CODE FOR THE DEPARTMENT OF CORRECTIONS 10A PROHIBITED ACTS SECTION AND DENIED THE APPELLANT HIS FOURTEENTH AMENDMENT RIGHT TO
DUE PROCESS UNDER TOUSSAINT V. MCCARTHY, [801 F.2d 1080, cert. denied, 481 U.S. 1069, 107 S. Ct. 2462, 95 L. Ed. 871 (1987)].
POINT III: THE DISCIPLINARY HEARING OFFICER'S GUILTY FINDING [WAS] NOT BASED ON SUBSTANTIAL EVIDENCE AND DENIED THE APPELLANT OF HIS DUE PROCESS RIGHT[S].
POINT IV: THE HEARING OFFICER'S FINDINGS REGARDING THE APPELLANT'S REQUEST FOR A HAND WRITING ANALYSIS PREVENTED THE APPELLANT FROM PRESENTING A DEFENSE THAT WOULD HAVE ESTABLISHED THAT HE WAS NOT THE AUTHOR OF THE NOTE.
The Department has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. See Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, it has been noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).
Prison disciplinary hearings are "not part of a criminal prosecution[,]" and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975) (citation omitted). Prisoners are, however, entitled to certain limited protections. Ibid. (citation omitted). 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 525-32; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995) (reaffirming the standards outlined in Avant); see also Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995).
Delgado was afforded the limited protections listed above. In his defense, Delgado pointed out that there was no record of him sending money to either address in the notes, that the notes involved the running of a canteen, and that the notes were not in his handwriting, did not belong to him and did not mention drugs.
On appeal, Delgado argues that he did not meet the criteria to be placed in prehearing detention. N.J.A.C. 10A:4-10.1. The administrative code specifically allows such prehearing detention "until an investigation into the inmate's alleged misconduct can be completed and a disciplinary hearing can be held . . . ." N.J.A.C. 10A:4-10.1(a). Delgado was placed in prehearing detention, as authorized by N.J.A.C. 10A:4-10.1(c)(6), because "in the opinion of the [c]orrectional [s]taff, there is a substantial possibility that the inmate will attempt to harm, threaten, or intimidate potential witnesses[.]" An inmate does not have a liberty interest in remaining free from a restrictive confinement such as prehearing detention. See Jenkins, supra, 108 N.J. at 250 (citation omitted).
Delgado also argues that the use in SCO Maze's report of ambiguous phrases such as his references to "a [singular] note discussing the possibility of receiving CDS" and Delgado "attempting to posses[s] possible CDS" rendered the charges against him improper. The disciplinary charges against Delgado were clear, specific and unambiguous.
Delgado argues that the evidence against him was insufficient. A hearing officer may rely upon trained prison investigators, such as Senior Investigator Zook, to detect proscribed activities concealed by prisoners through the use of otherwise neutral words in printed material. See Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003). The denial of Delgado's application for a handwriting analyst was not prejudicial. The notes were found in his one-man cell, so whether he wrote the notes or not, they were probative of his involvement in an attempt to introduce prohibited substances into the prison.
The relevant standard of review is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole[.]" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted). N.J.A.C. 10A:4-9.15(a) provides that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." The disciplinary decision against Delgado was founded on substantial evidence provided by the notes as explained by Senior Investigator Zook.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION