JACK CONDE v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3319-04T33319-04T3

JACK CONDE,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________________________________

 

Submitted October 31, 2005 - Decided

Before Judges Cuff and Holston, Jr.

On appeal from a Final Agency Decision of the Department of Corrections.

Jack Conde, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Jack Conde, a State prisoner serving a maximum sentence of five years with a two and one-half year period of parole ineligibility for receiving stolen property, appeals a final decision of the Department of Corrections (DOC) imposing disciplinary sanctions upon him for committing 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)*.005.

On October 26, 2004, Conde was issued the *.005 charge based on a statement he made to Senior Corrections Officer (SCO) Figueroa about his cellmate Robert Knight, "[c]all the Sgt. because if you let me back inside the gate, I'm going to fuck inmate Knight up, because he is a snitch, racist and a child molester." Because of Conde's threatening remark, he was not permitted to return to the location of his cell but was taken to pre-hearing detention while Knight was placed in temporary closed custody (TCC) status while the threat was investigated.

On October 27, 2004, the *.005 charge was delivered to Conde by Lt. Vessels, who advised Conde of his "Use Immunity" rights. Vessels immediately conducted an investigation of the incident. Conde pled not guilty. Conde did request counsel substitute, which was granted. Vessels, based upon the reports submitted, referred the matter to court line.

An initial hearing was held on October 28, 2004, and the hearing officer also advised Conde of his "Use Immunity" rights. The hearing was postponed so that Conde could have additional time to prepare his case.

A second hearing was scheduled for November 1, 2004, but was again postponed so that the hearing officer could obtain a statement from SCO Yoachum regarding inmate Knight's behavior, because Conde alleged that Knight was a behavioral problem, which his record would so reflect.

At the hearing, Conde, after pleading not guilty, stated: "I am not a violent person. I did not make a threatening statement. I don't have behavioral problems and I request leniency." Conde's counsel substitute stated on Conde's behalf, "inmate Knight lived in SCO Yoachum's unit. SCO experienced behavioral problems with the inmate. This is one of the reasons the inmate was assigned to another unit. Request SCO Yoachum report." Conde neither requested any witnesses on his behalf nor did he seek confrontation of adverse witnesses.

On November 3, 2004, the hearing resumed. The hearing officer reviewed the following: the TCC placement; special report of Sgt. Benson; special report of Sgt. Gordon; special report of Sgt. Cianfrani; special report of SCO Medino; emergency medical incident report; incident report; escort reports; offenses in custody; and the statement of SCO Yoachum.

Hearing Officer Morales made the following findings:

Inmate pleads not guilty, denies making verbal threat with intent of committing bodily harm. Paralegal requested statement from housing unit SCO where inmate Knight was assigned at one time. Conde states that Knight was removed from the unit due to behavioral problems. However, Yoachum states that he only experienced minor problems with inmate Knight. SCO Figueroa reports Conde requested to speak to Sgt. Inmate stated that if he was placed back in the same cell with Knight, he was going to "fuck him up because he is a snitch, racist and child molester."

Based on those findings, Conde was found guilty of prohibited act *.005.

The hearing officer imposed the following sanctions: ten days detention, sixty days loss of commutation time, and ninety days administrative segregation. The "Adjudication of Disciplinary Charge" indicates the reasons for the sanction: "Inmate Conde refused to be locked in with inmate Knight. Inmate stated that if he was locked in with inmate Knight, he was going to harm inmate with bodily harm. SCO Figueroa heard and observed inmate Conde make the statement. Last charge 8/2003."

On November 4, 2004, DOC's Associate Administrator Parrish upheld the hearing officer's decision and determined that "there was compliance with the DOC's standards on inmate discipline, which prescribe procedural safeguards."

Conde contends that the decision of the DOC should be reversed because the proceedings violated his due process rights in that (1) the charging instrument is invalid, (2) the hearing officer prevented complete presentation of his defense, and (3) the statement of reasons is inadequate.

Conde argues that the disciplinary reports do not indicate any language used by him that specifically threatened anyone's person or property. Therefore, the charging instrument fails to state a claim upon which relief can be granted. Conde asserts that the Supreme Court's decision in Jacobs v. Stephens, 139 N.J. 212, 224 (1995) requires that the words of an inmate must be "of such a nature as would reasonably convey the menace or fear of death to the ordinary hearer. . . ." Conde contends that because the language described in the disciplinary report constituting the charging instrument does not convey the required menace or fear of death, that no reasonable person could comprehend the language that he used as a threat to kill or destroy. Additionally, because he was separated from Knight at the time the language was overheard by SCO Figueroa, Conde contends that he was incapable of imposing any kind of harm upon Knight. Since harm was incapable of being carried out once security personnel moved him to another cell, Conde claims his remarks did not constitute an offense under *.005. Based on the same factors, Conde argues that there was insufficient evidence in the record from which the hearing officer could have found a violation of *.005. All that his remarks were intended to convey was that he found it impossible to remain any longer in the same cell with Knight and that he was requesting a removal from that cell to a different cell. Conde claims that the disciplinary report supports his contention that Knight was a discipline problem.

In Jacobs, inmate Jacobs was charged with "threatening another with bodily harm" in an argument with a prison guard in violation of N.J.A.C. 10A:4-4.1(a)*.005. Id. at 215. Jacobs argued that sufficient "substantial evidence" did not exist to support the allegation that he had threatened the corrections officer with bodily harm. Jacobs contended that although he had used abusive language, he did not intend to threaten the corrections officer. Id. at 222. The Supreme Court stated: "The determination of whether a remark constitutes a threat is made on the basis of an objective analysis of whether the remark conveys a basis for fear." Ibid.

We are satisfied that objectively viewed, the statement could reasonably have been understood as a threat to Conde's cellmate and could have conveyed an intent to physically harm Knight. The mere fact that Knight was not present at the time the threat was made and that Conde was not able to act on the threat or place Knight in immediate danger is not dispositive. Had SCO Figueroa not removed Knight and placed Conde in pre-hearing detention, Conde would have been returned to his cell. Therefore, objectively viewed, the threat carried the potential for violence against his cellmate and thus conveyed a basis for fear.

N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

We are satisfied that an objective analysis of the evidence in the record supports the hearing officer's determination, upheld by the DOC administrator's decision, that Conde had made a clear unambiguous threat to physically harm Knight as proscribed by *.005. There was substantial evidence supporting that factual finding.

 
Conde was permitted to put on a defense at the hearing, where he pled not guilty. Conde was also permitted to give a statement, and Conde's counsel substitute was able to make a statement on Conde's behalf. Conde did not request witnesses on his behalf. The adjudication report indicates, however, that his counsel substitute requested a report from SCO Yoachum, who was Conde's housing unit officer, regarding inmate Knight's alleged "behavioral problems." In fact, SCO Yoachum did provide the requested information, indicating that any problems with Knight were minor in nature, which was considered by the hearing officer in adjudicating the charge. Conde was unambiguously offered an opportunity to confront and cross-examine adverse witnesses, but the offer was declined. Line fifteen of the adjudication report specifically states that confrontation of adverse witnesses was "offered, [but] declined." Finally, Conde was shown the adjudication sheets and the evidence utilized by the hearing officer, and his signature and his counsel substitute's signature on line sixteen acknowledges that the information on lines one through fifteen accurately reflects what took place at the disciplinary hearing. Thus, Conde's hearing comported with all procedural due process protections.

Affirmed.

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A-3319-04T3

November 21, 2005