Opinion
DOCKET NO. A-5183-13T3
01-04-2016
U'BAY K. LUMUMBA, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
U'Bay K. Lumumba, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from the New Jersey Department of Corrections. U'Bay K. Lumumba, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). PER CURIAM
U'Bay K. Lumumba, an inmate in New Jersey State Prison (NJSP), appeals from a June 18, 2014, decision of the New Jersey Department of Corrections (DOC) upholding a hearing officer's finding that Lumumba committed sixteen disciplinary infractions and imposing sanctions. We reverse and remand for a new hearing.
We glean the following facts and procedural history from the record. On April 1, 2014, Lumumba was served with thirteen disciplinary reports charging him with nineteen prohibited acts in violation of N.J.A.C. 10A:4-4.1. The NJSP employee who reported each of the alleged prohibited acts was Senior Investigator R. Dolce. On April 15, 2014, Lumumba pled not guilty to the charges. Hearing Officer DiBenedetto assigned Lumumba a counsel substitute and granted a twenty-four hour postponement of the hearing to permit Lumumba an opportunity to prepare a defense.
The hearing was adjourned on April 17, 2014, to permit DiBenedetto an opportunity to review evidence from the Special Investigations Division of NJSP. The hearing was further postponed on April 21, 2014, so that witness statements requested by Lumumba could be obtained. Further adjournments of the hearing on April 23, 25, and 28, 2014, occurred to permit the scheduling of the confrontation of Dolce.
On April 30, 2014, Lumumba, his counsel substitute, and Dolce appeared before DiBenedetto for confrontation testimony from Dolce. Lumumba submitted three typewritten questions for DiBenedetto to ask Dolce. The record before this court includes a copy of the typewritten questions with handwritten notes following each of them, but there is no evidence in the record that the notes reflect Dolce's responses. The record does not include Dolce's confrontation testimony or any evidence DiBenedetto made a written record of Dolce's testimony.
The appendix to Lumumba's brief includes what he identifies as "Investigator Dolce Answers To Confrontation Question[]s," but does not include any evidence the information provided represents Dolce's actual responses to the confrontation questions submitted by Lumumba. In addition, there is no evidence that the hearing officer had access to the document or considered it.
The DOC's brief includes a general explanation as to the process by which the answers to written questions are recorded during a confrontation proceeding. The statements of counsel in a brief, however, do not provide an evidential record upon which we may properly rely in rendering a decision. See, e.g., Rudbart v. Bd. of Review, 339 N.J. Super. 118, 122-23 (App. Div. 2001) ("Counsel's insertion in his appellate brief of facts outside the record below is inappropriate. Generally, when reviewing trial errors, we confine ourselves to the record.").
On May 5, 2014, Lumumba was found guilty of each of the charges. DiBenedetto is listed as the hearing officer on the separate Adjudication Of Disciplinary Charge forms issued for each of the thirteen disciplinary charges. Annexed to each was a summary of the hearing officer's factual findings and recommended sanctions.
Lumumba appealed the hearing officer's determinations. On June 23, 2014, DOC issued a Disposition Of Disciplinary Decision upholding the hearing officer's findings and the sanctions imposed. This appeal followed.
In his brief on appeal, Lumumba argues the following:
POINT I
BECAUSE APPELLANT['S] MINIMAL DUE PROCESS RIGHT[S] WERE EGREGIOUSLY VIOLATED, WHEN THE RESPONDENTS UPHELD THE CHARGE'S [sic] AND THE ARBITRARY, CAPRICIOUS AN[D] UNREASONABLE GUILTY ADJUDICATION'S [sic]; THE DECISION SHOULD BE RESCINDED[.]
In his reply brief, Lumumba further argued:
[POINT I]
BECAUSE APPELLANT[']S MINIMAL DUE PROCESS RIGHT WAS VIOLATED WHEN THE RESPONDENTS CHARGED HIM ON 3-31-14 WITH DISCIPLINARY INFRACTIONS ALLEGED TO HAVE OCCURRED TWENTY-THREE MONTHS PRIOR, WAS UNREASONABLE, ARBITRARY AN[D] CAPRICIOUS, THE FINAL ADMINISTRATIVE DECISION UPHOLDING THE CHARGES MUST BE REVERSED.
[POINT II]
APPELLANT[']S MINIMAL DUE PROCESS RIGHTS WAS [sic] FURTHER VIOLATED WHEN THE DISCIPLINARY HEARING OFFICER FAILED TO DISMISS ALL CHARGES IN COMPLIANCE WITH THE GOVERNING SUBCHAPTER 9 DISCIPLINARY PROCEDURES [N. J.A.C.] 10A:4-9.8(b), [N. J.A.C.] 10A:4-9.9, [and N.J.A.C.] 10A:4-9.15. THUS THE FINAL ADMINISTRATIVE DECISION UPHOLDING THE 5-5-14 GUILTY ADJUDICATIONS AND SANCTIONS MUST BE INVALIDATED.
In his initial brief on appeal, Lumumba argued that he was denied due process because he was not present during the May 5, 2014, proceeding before the hearing officer. In response, DOC submitted a certification from DOC hearing officer J. Zimmerman in which she stated that she "was the hearing officer assigned to Lumumba's adjudication[]" and that the proceeding on "May 5, 2014, consisted only of [her] typing out [her] decision." In his reply brief, Lumumba contends Zimmerman's certification is false because "at no time" did she preside over the hearing on disciplinary charges or the May 5, 2014, proceeding.
Lumumba has no personal knowledge regarding the May 5, 2014, proceeding because he was not present for it. --------
We discern from the record that DiBenedetto was the hearing office originally assigned to decide the disciplinary charges against Lumumba. On April 17, 2014, DiBenedetto assigned Lumumba a counsel substitute and granted his request for an adjournment to prepare for the hearing. DiBenedetto granted further adjournments of the proceeding to permit the gathering of witness statements requested by Lumumba and to arrange for the confrontation of Dolce. On April 30, 2014, DiBenedetto conducted the confrontation proceeding during which Dolce testified in response to Lumumba's written questions.
The Adjudication Of Disciplinary Charge forms for each of the thirteen charges list DiBenedetto as the hearing officer, but Zimmerman's certification establishes that she replaced DiBenedetto as the hearing officer on May 5, 2014, and reviewed the available evidence. Zimmerman rendered the decisions on each of the disciplinary charges which were upheld by the DOC in its June 18, 2014, decision.
In Ratti v. Dept. of Corrections, 391 N.J. Super. 45, 47 (App. Div. 2007), we held that where credibility determinations are necessary during a hearing on prisoner disciplinary infractions, "the conduct of the evidentiary hearings by two different hearing officers is unacceptable as a violation of fundamental fairness that must attend all prison disciplinary proceedings." We further noted that, "[e]specially when credibility determinations are to be made, it is imperative that a single finder of fact receive all the evidence and make determinations based on all of the proofs." Ibid.
The record reflects that DiBenedetto was the hearing officer during the April 30, 2014 confrontation proceeding during which Dolce testified. The questions Lumumba submitted for Dolce to answer during the proceeding related to the timing of the investigation and to documents obtained during Dolce's investigation. Dolce's responses to the questions were of consequence to the hearing officer's determination of the charges. Information regarding the timing of the investigation was relevant to Lumumba's defense that the charges were not timely filed under N.J.A.C. 10A:4-9.2. Lumumba's other questions related to the source and authenticity of documents that were introduced as evidence against him.
Based upon the record, we conclude that any assessment of the testimony provided during the confrontation proceeding required a determination as to Dolce's credibility as a witness. Dolce testified in the confrontation proceeding, one purpose of which was to provide the hearing officer with an opportunity to assess Dolce's credibility. N.J.A.C. 10A:4-9.14(a); Jones v. Dep't of Corrections, 359 N.J. Super. 70, 76-77 (App. Div. 2003). The proceeding was conducted by DiBenedetto.
There is no evidence Zimmerman was present during Dolce's confrontation testimony. Zimmerman's decision on each of the charges, however, was dependent upon Dolce's credibility. In each of Zimmerman's decisions, she indicates that she relied upon information supplied by Dolce. Zimmerman expressly relied upon Dolce's testimony during the confrontation proceeding as the basis for her rejection of Lumumba's defense that the charges were not timely filed.
We therefore conclude that because the confrontation proceeding took place outside Zimmerman's presence, "a new hearing must be held, with all the evidence submitted to the same hearing officer and with that hearing officer making all of the required findings of fact and conclusions based upon the evidence." Ratti, supra, 391 N.J. Super. at 48. Because there will be a new hearing on the charges, it is unnecessary to address any of Lumumba's other arguments on this appeal.
Reversed and remanded for further proceedings in conformity with this decision. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION