TYRONE TYSON 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NOT FOR PUBLICATION WITHOUT THE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-5712-04T15712-04T1

TYRONE TYSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________________


Submitted September 27, 2006 - Decided October 20, 2006

Before Judges Collester and Baxter.

On appeal from a Final Determination

of the New Jersey Department of Correction.

Tyrone Tyson, appellant pro se, filed a brief.

Stuart Rabner, Attorney General, attorney for

respondent (Patrick DeAlmeida, Assistant Attorney

General, attorney; Christopher C. Josephson,

Deputy Attorney General, on the brief).

PER CURIAM

This is an appeal from a final agency decision of the New Jersey Department of Corrections ("Corrections") imposing disciplinary sanctions upon inmate Tyrone Tyson pursuant to N.J.A.C. 10A:4-4.1. After finding that the appellant had mailed a letter to another inmate, which contained prohibited gang-related language, Corrections imposed discipline consisting of ninety days in administrative segregation. Because we find that the agency's decision was not arbitrary and capricious, and was supported by substantial credible evidence in the record, we affirm. Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980).

I.

Appellant is an inmate currently incarcerated at New Jersey State Prison ("NJSP") in Trenton, where he is serving a sentence of twenty-one years, with a mandatory minimum term of seven years, for convictions of one count of aggravated manslaughter, three counts of aggravated assault and one count of possession of a weapon for an unlawful purpose.

In April 2005, he sent a letter to an inmate at East Jersey State Prison ("EJSP"). The letter was subsequently rejected at EJSP, and returned to NJSP for further action. NJSP Special Investigation Division ("SID") Investigator Raphael Dolce reviewed the letter, and based on his training and experience he determined it contained material related to a security threat group ("STG"), specifically, the "Bloods". As a result, on April 14, 2005, the letter was seized by SID, and appellant was charged, in writing, with participating in an activity related to a "security threat group" in violation of N.J.A.C. 10A:4-4.1. That section of the Administrative Code provides:

(a) An inmate who commits one or more of the following numbered prohibited acts shall be subject to disciplinary action and a sanction that is imposed by a Disciplinary Hearing Officer or Adjustment Committee with the exception of those violations disposed of by way of an on-the-spot correction. Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most sanctions[:]

. . .

*.010 participating in an activity(ies) related to a security threat group.

[N.J.A.C. 10A:4-4.1, *.010, Eff. October 4, 1999]

A different officer, Sergeant Daniels, then conducted an investigation of the charged incident. Although appellant was asked by the investigating sergeant to enter a plea and give a statement, he declined. After Sergeant Daniels concluded that a charge was warranted, he referred the matter to Courtline, an adjudicative body within the prison system.

The hearing was conducted on April 19, 2005, during which appellant was granted the assistance of a counsel substitute at his request. He pled not guilty to the charges.

At the hearing, the hearing officer reviewed the following evidence: Authorization for Prehearing Detention, Security Threat Group Evidence Review Form, Seizure of Contraband Report, and the letter written by plaintiff. Both appellant and his counsel substitute made statements. Appellant was offered the opportunity to cross-examine adverse witnesses and to call witnesses on his own behalf, but he declined both opportunities. He did acknowledge having written the letter, but denied that he was "speaking in Bloods."

In adjudicating the charge, the hearing officer issued written findings:

Officer reports that I/M [inmate] tried to mail a letter out of NJSP with STG material written in it. Officer is able to render an expert opinion due to the large number of training/conferences [he] has attended. (i.e., Union County Police Academy Gang Sociology). All relied on to determine guilt.

After finding appellant guilty of the charge, the hearing officer recommended detention, with credit for time served, and ninety days of administrative segregation.

Appellant filed an administrative appeal of the guilty finding. The next day, Assistant Superintendent Donald Mee upheld the decision of the hearing officer.

We turn first to appellant's argument that the regulation prohibiting activity related to a security threat group is "vague, too broad, and violated the fundamental constitutional right of freedom of expression." While it is true that convicted prisoners do not forfeit all constitutional protections by reason of being imprisoned, Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S.Ct. 2532, 2540, 53 L.Ed. 2nd 629, 641 (1977), their rights are nonetheless subject to some restriction and limitation. Id. at 125. "Central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed 2nd 495, 502 (1974).

We conclude that suppressing gang activity within prison walls is essential to maintaining correctional facilities' stability, safety and order. STG activities pose a threat to the safety of staff, other inmates and the community. Accordingly, we reject plaintiff's claim that the regulation impermissibly infringes his right to freedom of expression.

With respect to appellant's claim that N.J.A.C. 10A4-4.1, *.010 is so vague as to fail to put him on notice of what activity would run afoul of the regulation, we find that the regulation is more than sufficient to put an inmate on notice of the type of activity that would constitute a violation. The regulations themselves define "sending security threat group related correspondence" as one of the enumerated "security threat group activities." N.J.A.C. 10A:5-1.3.

Not only did Corrections specify that sending gang-related correspondence constituted participation in STG activity, but Corrections had also established a list of security threat groups, specifically identifying gangs by name. Among them was a group known as "Bloods". Although the regulation at issue does not specify words or terminology that would constitute participation in security threat group activity, Corrections points to the "constantly changing vernacular utilized by STG's" which prevents Corrections from being specific about the specific language which is prohibited. Corrections asserts that:

[G]ang experts in the department's SID rely upon their training and experience to determine on a case-by-case basis if the language used in a particular letter is related to an STG. Also, custody staff are available to answer any questions that an inmate may have regarding possible prohibited acts.

Accordingly, we are unable to conclude that N.J.A.C. 10A:4-4.1 is unduly broad or vague.

We next address appellant's claim that the evidence in support of an alleged infraction of the regulation was insufficient. The SID found three justifications for concluding that the letter plaintiff sent to an inmate at East Jersey State Prison did constitute security threat group activity. The investigating officer found:

JUSTIFICATION:

The letter contains the following identifiers:

(1) The use of the letter 'B' is to symbolize the word 'Blood'.

(2) [A] sentence which transposes the word 'work' with 'twirk'. The sentence talks about a subject who disregarded a superior identified as 'T' and 'put the twirk in'. This reference means that a subject assaulted someone else without getting permission from the superior identified as 'T'.

(3) The term 'Roscoe' is widely used by this group to identify Police/Custody staff.

Our review of the seized correspondence demonstrates that it does indeed contain the aforementioned references. Only where an agency's decision is arbitrary or capricious or unsupported by credible evidence in the record may it be reversed. Henry, supra, 81 N.J. at 579-580. An adjudication of a violation of an infraction must be supported by substantial evidence. McDonald v. Pinchak, 139 N.J. 188, 195 (1995).

In this case, there is substantial, credible evidence that appellant violated the regulation which prohibits security threat group activity. SID Investigator Dolce, a qualified expert in the area of gang recognition and identification, whose qualifications are set forth in the record, reviewed the letter and determined that the use of the words and identifiers in Tyson's letter were indeed indicative of the STG "Bloods". Furthermore, in his own statement during the adjudication hearing, appellant admitted authorship of the letter. We therefore conclude that there is substantial, credible evidence of plaintiff's guilt. Henry, supra, 81 N.J. at 579-580

We also reject plaintiff's claim that the procedures utilized were unfair. In Avant v. Clifford, 67 N.J. 496 (1975), the Supreme Court specified the minimum procedural requirements for inmate disciplinary proceedings. Those safeguards include the right to written notice of the charges twenty-four hours prior to the hearing, the right to call witnesses and present documentary evidence, the opportunity to confront and cross-examine adverse witnesses, the right to be provided with a written statement of the evidence relied upon and the reasons for the sanctions imposed, and the right to an impartial tribunal, which may consist of personnel from within the central office staff of the correctional institution. All of those protections were afforded to appellant, and the disciplinary proceeding therefore fully complied with the requirements of Avant.


Affirmed.

(continued)

(continued)

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A-5712-04T1

October 20, 2006