RASHEED POWELL v. DEPARTMENT OF CORRECTIONS
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5361-04T55361-04T5
DEPARTMENT OF CORRECTIONS,
Submitted: March 27, 2006 - Decided May 8, 2006
Before Judges Cuff and Lintner.
On appeal from Final Agency Decisions of the Department of Corrections.
Rasheed Powell, appellant pro so.
Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).
In these consolidated prison disciplinary appeals, we review two adjudications of disciplinary charges arising from the same incident. We affirm the adjudications but remand for reconsideration of the sanction.
Appellant Rasheed Powell is an inmate currently incarcerated at Northern State Prison. He appeals from final agency decisions dated May 25, 2005, and June 15, 2005, arising from the same incident that occurred on April 11, 2005. On April 11, 2005, Corrections Sergeant St. Paul observed a bulge in the left front pocket of inmate Powell's pants during a mass movement on the North Arcade. The sergeant ordered SCO Atuncar to pat-frisk Powell. Two hundred and thirty individually folded pieces of paper stamped "Assassin" were found. Each "deck" contained a white powdery substance believed to be a controlled dangerous substance (CDS). Powell was handcuffed, examined by a nurse, and placed in pre-hearing detention. Due to the amount of the suspected CDS, Sgt. St. Paul determined that Powell intended to distribute the suspected CDS and charged him with possession with intent to distribute or sell prohibited substances such as drugs, intoxicants or related paraphernalia, *.215 (N.J.A.C. 10A:4-4.1(a)). On the same day, he was charged with possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff, *.203 (N.J.A.C. 10A:4-4.1(a)). This charge was based on the presence of the suspected CDS in the inmate's left front pocket.
The *.215 charge was delivered to Powell on April 11, 2005. Powell pleaded not guilty and stated that the package was not on his person but on the ground between him and another inmate. Powell also requested and was assigned counsel substitute. The first hearing convened on April 13, 2005, but was adjourned to allow receipt of a laboratory report. The hearing was re-scheduled but postponed on seven occasions in April to allow the receipt of laboratory results. The hearing was re-scheduled and postponed on four occasions in May for the same reason. On May 12, 2005, the hearing was postponed to allow confrontation of witnesses.
The hearing concluded on May 13, 2005. The hearing officer reviewed the investigatory file including statements from Sgt. St. Paul and SCO Atuncar, photographs of the suspected CDS, and a videotape of the North Arcade area. Powell challenged the report and statement by SCO Atuncar. Powell stated that he was simply advised to place his hands against the wall. Counsel substitute argued that it defied credulity for an inmate to appear at a mass movement with a large bulge of contraband in a pocket.
The hearing officer accepted the statements of Sgt. St. Paul and Atuncar as credible. Therefore, he found that the suspected CDS was found "inside the pants of [inmate] while conducting a pat search." Although the hearing officer did not have a laboratory report about the nature of the seized items, he found that the packaging of the items was "consistent with that of CDS paraphernalia." The hearing officer noted that he reviewed the videotape of the area of the prison where the incident occurred and that the responses by St. Paul and Atuncar to the cross-examination questions posed by the inmate were consistent with their reports and statements. Therefore, the hearing officer concluded that "it is reasonable to conclude that the items seized and the manner by which it was packaged constitutes CDS paraphernalia."
Having found Powell guilty of the charge, the hearing officer recommended sanctions of fifteen days detention with credit for time served, 365 days administrative segregation, and 365 days loss of commutation time. The hearing officer also recommended 365 days urine monitoring, permanent loss of contact visits, enrollment in a drug treatment program and confiscation of the contraband. The inmate's administrative appeal was denied on May 25, 2005.
The *.203 charge was delivered to Powell on April 12, 2005. Powell pled not guilty. He denied that the suspected CDS was his or ever in his possession. The hearing was scheduled and postponed numerous times in order to obtain the laboratory results. The hearing resumed on June 3, 2005, at which time the laboratory results were received, Powell was advised of his use immunity rights, and his request for counsel substitute was granted. Hearing Officer Nolley reviewed the investigatory file, including the reports of Sgt. St. Paul and SCO Atuncar, photographs of the contraband, a videotape, and the confrontation questions and answers posed to Sgt. St. Paul and SCO Atuncar. Powell testified that he was not in possession of the package of CDS. He stated that the drugs were on the ground between him and other inmates. Counsel substitute also requested that the *.203 charge and any sanction "run with" the *.215 charge.
The hearing officer reviewed the reports and the videotape of the area of the stop and search. The hearing officer reported that the videotape did not reveal the area of the stop and frisk but did reveal the inmate being escorted from the North Arcade into another building. The hearing officer found Powell guilty of the charge and recommended sanctions of fifteen days administrative detention with credit for time served, 365 days administrative segregation suspended for sixty days, and 365 days loss of commutation time. She also recommended 365 days urine monitoring, permanent loss of contact visits, enrollment in a drug treatment program and confiscation of the contraband. The inmate's administrative appeal was denied on June 15, 2005.
On appeal, the inmate argues that he was denied due process during the disciplinary proceedings because his request to view the videotape and his request for a polygraph examination were denied and that his hearings were unnecessarily delayed.
As an appellate tribunal, our ability to review a final decision of an administrative agency is limited. We will disturb an agency decision only if the action is arbitrary, capricious or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
An adjudication of guilt of an infraction must be supported by substantial evidence. Jacobs v. Stephens, 139 N.J. 212, 222-24 (1995); Avant v. Clifford, 67 N.J. 496, 530 (1975); N.J.A.C. 10A:4-9.15(a). The adjudication procedure must also assure that the inmate is afforded the procedural due process that is his due. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs, supra, 139 N.J. at 222; Avant, supra, 67 N.J. at 525-33.
We are satisfied that both adjudications are supported by substantial evidence. A sergeant observed a bulge in Powell's left front pocket and directed a corrections officer to frisk the inmate. The senior corrections officer observed the bulge, frisked the inmate and found 230 paper folds containing a white powdery substance bearing the legend "Assassin." Laboratory analysis determined that the substance was heroin. Moreover, the packaging and quantity of the substance provided substantial evidence that the substance was consistent with an intent to distribute the substance to others.
We are also satisfied that the inmate received all of the process that he was due. The charges were investigated and delivered within forty-eight hours as required by N.J.A.C. 10A:4-9.5(a). Powell was informed of his use immunity rights, his plea was taken and his statement was taken as required. N.J.A.C. 10A:4-9.5(e). At each hearing, Powell was offered confrontation of Sgt. St. Paul and SCO Atuncar. At the hearing on the *.203 charge (possession of CDS), Powell was allowed to confront the officers, and he submitted cross-examination questions to them. Counsel substitute was appointed and participated in the hearing.
The inmate's principal argument concerns the delay in the disposition of both hearings and his placement in pre-hearing detention pending the disposition of the charges. Here, the delay was occasioned by submission of the seized substance to the State Police for chemical analysis. Ultimately, the hearing on the *.215 charge proceeded without the results of the laboratory analysis. In each case, however, the reason for the delay was reasonable. N.J.A.C. 10A:4-9.8(c). Moreover, Powell's placement in pre-hearing detention was authorized under the circumstances, N.J.A.C. 10A:4-10.1(6), and caused no prejudice to him. He received full credit for time served.
In the appeal from the adjudication of guilt of the *.215 charge (possession with intent to distribute), A-5361-04T5, Powell also contends that he should have been able to view the videotape of the area. The State responds that the videotape is confidential and properly withheld from the inmate.
We discern no basis to question the decision to withhold the videotape from the inmate. The videotape may contain evidence relevant to the charge. See Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 22 (App. Div. 2005). It may also contain information that has the capacity to compromise prison security. Under the circumstances of this record, we have no basis to contest the determination of the Department of Corrections that the videotape would compromise prison security. The inmate was provided a summary of the scene depicted on the tape. N.J.A.C. 10A:4-9.15.
On the other hand, when a hearing officer reviews a videotape and that review is utilized in the analysis of the evidence, the videotape must be preserved for review by this court. To do otherwise undermines the ability of this court to discharge its adjudicatory function. Preservation and submission of confidential evidence is also consistent with current practice. Fisher v. Hundley, 240 N.J. Super. 156, 161 (App. Div. 1990).
We requested the videotape, but we have been informed that it cannot be located. In this case, the absence of the confidential evidence and our inability to review it does not require reversal. Here, the actions by the corrections officers were precipitated by personal observations rather than the receipt and review of confidential information. It was well within the hearing officer's capacity to consider their observations more probative and credible than the inmate's denial.
We also do not disturb the decision denying the inmate's request for a polygraph examination. The right to have a polygraph examination is conditional. Ramirez, supra, 382 N.J. at 23-24. A request for a polygraph must be granted when there is a serious question of credibility and denial of the examination would undermine the fundamental fairness of the proceeding. Id. at 20, 25. When, however, evidence is corroborated through eyewitness accounts, a decision to deny a polygraph examination will not be disturbed. Id. at 25-26. Here, the sergeant's initial observation was confirmed by a second officer, who then discovered the contraband following a frisk.
Although not raised on appeal, at the hearing on the *.203 charge (possession of CDS), counsel substitute requested "for this charge to be run with the *.215 charge." Identical sanctions were imposed on each charge, except that the 365 days administrative segregation imposed on the *.203 charge was suspended for sixty days. In this case, Powell was charged and adjudicated guilty on two charges: possession of CDS and possession of CDS or CDS paraphernalia with intent to distribute arising from the same conduct. On each charge, he received an identical and substantial sanction. In the criminal context, these charges would merge. N.J.S.A. 2C:1-8; State v. Rechtschaffer, 70 N.J. 395, 411 (1976); State v. Selvaggio, 206 N.J. Super. 328, 330 (App. Div. 1985). Counsel substitute requested either merger or a concurrent sanction. Under the circumstances of this case, the second hearing officer should have responded specifically to this request and explained why the request was rejected. We remand for an explanation why the sanctions on these charges should not be served concurrently.
The adjudications of guilt are affirmed; remanded for re-consideration of sanctions in accordance with this opinion. We do not retain jurisdiction.
These appeals, originally calendared back-to-back, are consolidated on the court's motion for purposes of opinion only.
Color tests and gas chromatography-mass spectrometry tests conducted by the State Police laboratory revealed the substance was heroin.
These arguments are presented only in A-6148-04T5, the appeal from the adjudication of the *.203 charge.
May 8, 2006