Opinion
DOCKET NO. A-2191-09T1
08-16-2011
EVAN NATAL, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Evan Natal, appellant pro se. Paula T. Dow, attorney for respondent (James Savage, Assistant Attorney General, of counsel; Marisa Slaten, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Roe.
On appeal from the New Jersey Department of Corrections.
Evan Natal, appellant pro se.
Paula T. Dow, attorney for respondent (James Savage, Assistant Attorney General, of counsel; Marisa Slaten, Deputy Attorney General, on the brief). PER CURIAM
Evan Natal appeals from a final agency decision of the New Jersey Department of Corrections (Department) imposing disciplinary sanctions upon appellant pursuant to N.J.A.C. 10A:4-4.1. Appellant is an inmate currently incarcerated at Bayside State Prison (BSP) in Leesburg, New Jersey. Natal is serving a six year sentence for second and third degree possession of a CDS. His maximum release date is September 5, 2013. Natal has appealed from the final agency decision of the Department imposing disciplinary sanctions upon him for possession or exhibition of anything related to a security threat group in violation of Prohibited Act *.011 under N.J.A.C. 10A:4-4.1(a).
On October 1, 2009 at 5:15 p.m., Senior Corrections Officer Clement conducted a routine search of Natal's cell 232. While searching through Natal's footlocker, SCO Clement discovered various drawings and letters consistent with those identified with the "Bloods" street gang. Natal confirmed that all of the confiscated material belonged to him. SCO Clement reported his findings and Sgt. Smith delivered disciplinary charges to Natal at 6:20 p.m.
Sgt. Smith then conducted an investigation of the incident. During the investigation, Natal explained that the drawings were tattoo designs and the letters were original music lyrics about his past experience as a "Bloods" gang member. Based on the evidence, Sgt. Smith deemed that the disciplinary charge was merited and referred it to courtline for a hearing. Natal pleaded not guilty to the charges.
Hearing Officer Zane Maguire conducted Natal's disciplinary hearing on October 7, 2009. Natal requested and was granted the assistance of counsel-substitute. During the hearing, Natal argued that he completed a security threat group program and that he had renounced his "Bloods" membership. Through counsel-substitute, Natal presented a defense and asserted that the drawings and letters were for a clothing line and for song lyrics about his past as a "Bloods" gang member. Natal did not present any witnesses. After reviewing all of the evidence including a special investigation report detailing at least ten references to the "Bloods" street gang, and Natal's admission that the materials belonged to him, the hearing officer found Natal guilty of violating Prohibited Act *.011. The hearing officer imposed sanctions of fifteen days detention, 300 days loss of commutation time and 300 days of administrative segregation. The hearing officer reasoned that the sanction was appropriate given the seriousness of the offense and Natal's disciplinary history.
Natal administratively appealed the decision of the hearing officer. On October 9, 2009, Don McNeil, Associate Administrator, upheld the guilty finding and imposed sanctions. He reasoned that the sanction "was proportionate to the offense in view of the inmate's recent disciplinary history and present custody status." This appeal followed. We affirm.
On appeal, Natal contends the finding of guilt was not supported by substantial credible evidence and the disciplinary hearing failed to comport with all procedural due process requirements.
Appellate courts have a limited role in reviewing decisions of administrative agencies. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the ultimate determination of an agency unless it is shown that the decision was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied and the act governing the agency or the findings upon which the decision is based are not supported by the evidence. Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963). Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n., 93 N.J. 384, 391 (1983). In determining whether an agency is supported by substantial credible evidence, the reviewing court is obligated to accord deference to the administrative agency fact finding. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).
In Worthington v. Fauver, 88 N.J. 183 (1982) our Supreme Court defined arbitrary and capricious action of administrative bodies as "willful and unreasoning action, without consideration and in disregard of circumstances." Id. at 204. We may not vacate an agency's determination simply because of doubts as to its wisdom or because the record may support more than one result. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
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 than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chemical Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990), (quoting De Vitis v. N.J. Racing Comm'n., 202 N.J. Super. 485, 491 (App. Div.) certif. denied, 102 N.J. 337 (1985). As explained in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." See also, N.J.A.C. 10A:4-9.15(a).
A search of Natal's cell found various drawings and letters in his footlocker identified with the "Bloods" street gang in violation of Prohibited Act *.011 which proscribes the mere possession of gang related material, regardless of motive or membership in a gang. Natal admitted that the confiscated letters and drawings belonged to him and indicated that he is a former member of the "Bloods." Notwithstanding Natal's claims that these items were tattoo designs for a clothing line and song lyrics about his past affiliation as a "Bloods" gang member, Senior Investigator Clark, trained in identifying security threat group paraphernalia, identified ten indicators related to the "Bloods" street gang in the materials confiscated from Natal. Hearing Officer Maguire relied on this evidence when concluding that Natal was in possession of materials related to a security threat gang.
Prohibited Act *.011 strictly prohibits possession of gang-related materials, without regard to membership or motive. Natal was in possession of the drawings and letters containing "Bloods" references and this falls squarely within the scope of the disciplinary charge. Substantial evidence exists in the record as to Natal's possession of materials related to a street gang in violation of Prohibited Act *.011.
Natal contends he was not afforded due process through the hearing and with assistance of counsel. Prison disciplinary hearings, in contrast to criminal prosecutions, provide defendants limited procedural due process rights. The Supreme Court set forth the requirements in Avant v. Clifford, 67 N.J. 496 (1975):
(1) Written notice of the charges at least 24 hours prior to the hearing, 67 N.J. at 525;
(2) An impartial tribunal, which may consist of personnel from the Central Office staff of the department, 67 N.J. at 525-28;
(3) A limited right to call witnesses and present documentary evidence in defense to the charges, 67 N.J. at 529;
(4) A limited right to confront and cross-examine adverse witnesses, 67 N.J. at 529-30;
(5) A right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, 67 N.J. at 533; and
(6) Where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute, 67 N.J. at 529.
The Avant standard was reinforced in McDonald v. Pinchak, 139 N.J. 188 (1995), and Jacobs v. Stephens, 139 N.J. 212 (1995). The current Department of Corrections 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." McDonald, supra, 139 N.J. at 202.
Natal was afforded due process throughout the disciplinary hearing. He received notice of the charges against him on October 1, 2009, more than 24 hours before the hearing on October 7, 2009. That same day, Sgt. Smith conducted an investigation of the incident and found enough evidence to substantiate the disciplinary charge. Hearing Officer Maguire, as a member of the Department's Central Office staff, was an impartial tribunal conducting the disciplinary hearing. Natal requested and received assistance of counsel-substitute. He presented a defense and waived his right to confront and cross-examine the adverse witnesses. Natal received all of the due process entitlements of the Avant standard.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION