LYNN S. KELSEY v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2363-05T12363-05T1

LYNN S. KELSEY,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted September 13, 2006 - Decided October 26, 2006

Before Judges Stern and Sabatino.

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

Lynn S. Kelsey, appellant pro se.

Anne Milgram, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Dewan N. Arefin, Deputy Attorney General, on the brief).

PER CURIAM

Lynn Kelsey, a State inmate at the Edna Mahn Correctional Facility, appeals a December 5, 2005 final decision of the Department of Corrections. The decision upheld disciplinary sanctions that the Department imposed upon her for violating N.J.A.C. 10A:4-4.1(a)*.005, which is an asterisked infraction for "threatening another with bodily harm or with any offense against his or her person or his or her property." The Department sanctioned appellant with fifteen days of detention, with credit for time served, 180 days' loss of commutation time and 180 days of administrative segregation. We affirm.

Appellant's discipline stemmed from incidents that began on November 21, 2005. The record and associated findings of the Department's hearing officer reflect that on that date appellant made an offensive gesture (specifically clutching her bent forearm) towards Deano Genovese, a civilian employee who was then operating the prison commissary. Appellant evidently made that improper gesture in response to Genovese complaining that he had perceived her cutting in line. On the following day, November 22, appellant reportedly stated in a hostile manner to Genovese "I'll get you. I have three and a half months to get even with you." That threat was overheard by another inmate named Wright. After an ensuing hearing in which she was assisted by a counsel substitute, appellant was found guilty of the *.005 infraction.

Appellant admits making the arm gesture on November 21 but claims that she did it in response to verbal abuse from Genovese. Appellant contends that Genovese had mistakenly thought she had been trying to cut in line, instead of recognizing that she was confused about the status of the person who was standing ahead of her near the commissary entrance. Appellant denies making the threatening remark on November 22.

On appeal, appellant raises the following points:

POINT I

APPELLANT WAS VICTIMIZED BY REPORTING PERSONNEL WITH VERBAL ABUSE CONTRARY TO HER RIGHTS UNDER N.J.A.C. 10A:4-3:1(a)1.

POINT II

RESPONDENT DEPARTMENT OF CORRECTIONS FAILED TO CONDUCT [A] "THOROUGH" INVESTIGATION IN ACCORDANCE WITH N.J.A.C. 10A:4-9.5[,] WHICH WAS CONTRARY TO N.J.A.C. 10A-4-9. 8 AND 10A:4-9.7

POINT III

APPELLANT DENIED "REASONABLE" AND FAIR REPRESENTATION BY COUNSEL SUBSTITUTE CONTRARY TO N.J.A.C. 10A:4-9.12

POINT IV

APPELLANT DENIED RIGHT TO CROSS-EXAM CRITICAL WITNESS AND PROPER DUE PROCESS AND PRESENTING DOCUMENTARY EVIDENCE REQUIRING REVERSAL AND REMAND

POINT V

NEW EVIDENCE REQUIRES A NEW HEARING

As a initial matter, we note that the arguments in Points III and IV were not raised in the proceedings before the Department and thus do not warrant our consideration. Nieder v. Royal Indemnity Insurance Co., 62 N.J. 229, 234 (1973). The alleged ineffectiveness of appellant's counsel-substitute argued in Point III is the kind of allegation, if it is cognizable at all, that should be raised contemporaneously in the administrative proceedings. In this way, the agency can evaluate the claim and, if appropriate, take timely remedial action. As to Point IV, we note in passing that the Department took reasonable steps to attempt to obtain statements from potential witnesses as requested by appellant. The record reflects that several of those persons (inmates Gaines, Mitchell and Lee) were unwilling to provide a statement, another witness (inmate Wright) offered a statement that failed to corroborate appellant's version of the events, and another (inmate Williams) simply could not be located. We further perceive no reversible error in the hearing officer's failure to consider a November 22, 2005 letter proffered by appellant, which she had received from an assistant institutional ombudsman after she complained about Genovese's conduct, on employee discipline matters that were plainly collateral to the charged offense.

We conclude that that appellant's remaining arguments, viewed through the deferential standard of review that we must observe in these matters, see Jacobs v. Stephens, 139 N.J. 212, 222 (1995)(requiring the affirmance of prison disciplinary findings supported by "substantial evidence"), are unpersuasive. We also discern no violation of appellant's qualified constitutional right to procedural fairness in the prison disciplinary process. See Avant v. Clifford, 67 N.J. 496 (1975)(prescribing minimal procedural due process norms for prison disciplinary hearings).

In particular, we first observe that the brief postponement of appellant's final hearing to December 1, 2005 was reasonably justified, particularly given that the time frame at issue spanned in part the Thanksgiving holiday period.

Further, as we have already noted, appellant had the opportunity before the hearing to have statements elicited from witnesses. She availed herself of her right to have the Department's key witness, Genovese, cross-examined. She also testified herself, providing the hearing officer with a fair opportunity to compare her credibility with that of Genovese. The hearing officer made a factual determination that the conduct of Genovese, which appellant characterizes as verbally abusive, did not justify appellant's animated and threatening response.

If appellant perceived that Genovese was mistreating her, she had far more civilized methods of communicating that perception to supervisors within the institution. Ironically, that same guidance was expressed by the assistant institutional ombudsman in her letter to appellant, counseling that appellant "must first attempt to resolve [her] issues [concerning Genovese's alleged abuse] with the appropriate institutional department."

Moreover, security in prison is a paramount concern, so that threatening remarks uttered within a prison must be taken far more seriously than equivalent outbursts in civilian venues. The Department thus has a strong institutional interest in proscribing the sort of conduct at issue in this matter, even if we accept the premise that the appellant's words were not subjectively intended to cause the Department's commissary worker fear or harm. "When words of an inmate are of such a nature as would reasonably convey the menace or fear of death to the ordinary hearer, then that is a threat of bodily harm and therefore punishable under N.J.A.C. 10A:4-4.1(a)*005." Jacobs, supra, 139 N.J. at 224 (sustaining discipline even though the inmate had made the threatening remark during a "heated discussion").

Lastly, we have considered the post-hearing unsworn statement of Nichelle Lee dated January 3, 2006, which is contained in appellant's appendix. Lee's assertion that she herself never observed appellant threaten Genovese does not vitiate the substantial evidence derived from other sources, including the testimony of Genovese, the written statement of Wright and appellant's own admission of making an offensive gesture with her arm, all of which support the hearing officer's finding of guilt.

 
Affirmed.

We are aware that Lee now contends, without corroboration, that no corrections staff member ever contacted her about giving a statement before appellant's hearing.

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A-2363-05T1

October 26, 2006