ANTONIO MUNOZ v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2766-07T32766-07T3

ANTONIO MUNOZ,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________________________________

 

Submitted February 23, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

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

Antonio Munoz, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Antonio Munoz, an inmate at Northern State Prison in Newark, appeals from a Final Agency Decision of the New Jersey Department of Corrections (DOC) finding him guilty of Prohibited Act .053, indecent exposure, in violation of N.J.A.C. 10A:4-4.1. On appeal, Munoz claims that he was denied due process because he was found guilty without the opportunity to appear before a hearing officer, make a statement, cross-examine adverse witnesses, or present witnesses on his own behalf. Munoz also claims that he was held in pre-hearing detention (PHD) "longer than allowed." We remand for a new hearing consistent with this opinion.

Munoz is currently serving a thirty-two-year, five month, ten-day sentence with a ten-year parole disqualifier for robbery and related offenses. On December 12, 2007, while performing camera surveillance of the Security Threat Group Management Unit (STGMU) visit area at Northern State Prison, Corrections Officer Recruit B. Summers observed Munoz touching his genitals during a non-contact window visit. Summers dispatched Senior Officer Glenda Smith to investigate. Smith observed Munoz masturbating in view of his female visitor, Angelique Camacho, whom Munoz describes as his fiancé. When Smith arrived, Munoz turned around, exposing himself to Smith. Munoz was immediately placed in PHD and a Form 259 Disciplinary Report (Disciplinary Report) was filed charging Munoz with a violation of Prohibited Act .053, indecent exposure, in violation of N.J.A.C. 10A:4-4.1.

On December 13, 2007, at 11:49 a.m., Sergeant Ronald Sloan delivered a copy of the Disciplinary Report to Munoz containing the charge and Smith's written allegation. Sloan undertook an investigation of the alleged infraction and recorded findings in Section B of the Disciplinary Report. The Disciplinary Report indicates that Munoz pleaded not guilty, made no statement concerning the charge, and requested that the inmate paralegal act as counsel substitute. In two sections of the Disciplinary Report labeled "Statements of witnesses," Sloan wrote in the word "None." Sloan also wrote in the word "None" in the next section, labeled "Other facts concerning the charge."

On December 14 at 11:55 a.m., a hearing took place before Disciplinary Hearing Officer J. McGovern, as memorialized in a Form 259-A hearing form (Hearing Form). The Hearing Form indicates that several reports were used as evidence against Munoz, including those of Smith, Summers, and Sergeant James, the area supervisor, who escorted Munoz to PHD immediately following the incident. Those reports are included as addenda to the Hearing Form. Summers' report indicates that while remotely monitoring the visitation rooms he witnessed Munoz's hand moving rapidly near his genital area and called on Smith to investigate. Smith's report indicates that she "walked in on [Munoz] and noticed his hand in his genital area. He turned around and had his penis in his hand with his pants partially down jerking off in front of his female visitor[.]" James' report indicates that he saw Munoz attempting to pull up his pants when he arrived to escort Munoz to PHD. The makers of the other reports did not actually witness Munoz performing the prohibited act.

The Hearing Form provides spaces for evidence presented by the inmate. In the space next to a section labeled "Statement of inmate," Hearing Officer McGovern wrote in the word "None." In the space following the next section, labeled "Statement of counsel substitute," Hearing Officer McGovern wrote in "Plea for leniency." A section for information regarding inmate's witnesses states, in similarly terse language, that none were requested, that no reason was provided for the inmate's lack of desire to produce witnesses, and that no other documents were submitted on the inmate's behalf. In the next section, in which the inmate may request to confront or cross-examine adverse witnesses, the words "Hearing officer offered; inmate declined" appear.

On the following page of the Hearing Form, Munoz's counsel substitute, identified only as "DeSouza," signed an acknowledgement that the information in the preceding sections accurately reflects what took place at the hearing. Munoz's signature does not appear anywhere on the form. The hearing officer's decision finding Munoz guilty follows, with a summary indicating that he relied on the reports of Smith, Summers, and James as evidence of the action charged.

Munoz received a disciplinary sanction of ninety days administrative segregation, sixty days loss of commutation time, fifteen days detention with credit for time served, thirty days loss of recreation privileges, and ninety days loss of visits. On December 29, 2007, Munoz submitted an appeal to the Administrator, who upheld the findings and sanctions of the hearing officer notwithstanding Munoz's contention that he never received a hearing.

On appeal, Munoz disputes the officers' factual account of the incident and the amount of process provided. Regarding the facts of the incident, Munoz claims that the story of his alleged masturbation was concocted by Smith, who was displeased because Munoz and his visitor continued their visit despite being told that the one-hour time limit had elapsed. Munoz also contends that (1) he was not present at his hearing; (2) he was deprived of the opportunity to give a pre-adjudication statement, contrary to the notation on the Disciplinary Report indicating that the inmate had "No statement at this time"; (3) he was not provided with the opportunity to call a witness on his behalf, contrary to the notation on the Hearing Form indicating "none requested," which was acknowledged by counsel substitute; and (4) had he been provided with the opportunity he would have requested to review the video evidence that allegedly showed him committing the prohibited act.

On review, we must uphold a final agency decision unless it is arbitrary, capricious, unreasonable or unsupported by credible evidence. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The relevant standard of review is "'whether the findings could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole . . . .'" In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal quotations omitted)).

Inmates subject to disciplinary proceedings do not receive the full spectrum of rights accorded to criminal defendants, but must be accorded a minimum level of due process. Avant v. Clifford, 67 N.J. 496, 522 (1975). The Court, in Avant, clarified these rights to include: (1) notice in writing of the allegations against the inmate at least twenty-four hours before the hearing, id. at 525; (2) a hearing before an impartial tribunal, id. at 525-28; (3) the right to call witnesses and present evidence, subject to certain limitations due to the need for security and order in a prison setting, id. at 529; (4) a right to confront and cross-examine adverse witnesses, subject to the same limitations, id. at 529-30; (5) a right to a written statement specifying the evidence relied upon by the tribunal and the reasons underlying the imposed sanctions, id. at 533; and (6) the assistance of counsel substitute where the inmate is illiterate or unable to mount a defense, or where the charges are complex, id. at 529. These procedural due process requirements were reaffirmed by the Court in McDonald v. Pinchak. 139 N.J. 188, 202 (1995) (finding that "they 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").

In addressing the "hearing" requirement, the Court, in Avant, confirmed that the inmate must be present at his hearing, unless there are compelling circumstances demanding otherwise:

The inmate is permitted to be present throughout the hearing except during the Committee's deliberations and except where institutional security would be jeopardized. The reasons for excluding the inmate from the hearing must be "well documented" on the record. Otherwise, the hearing is conducted in the absence of the inmate only if he refuses to appear and cannot be brought to the hearing without the use of force, or if he is on escape.

[Avant, supra, 67 N.J. at 529.]

The DOC's disciplinary procedure regulations integrate the Avant Court's requirements in guiding the imposition of prison discipline. The regulations provide inmates with a right to be present at their own hearing, and impose safeguards to ensure that hearings are not conducted in their absence. Pursuant to N.J.A.C. 10A:4-9.10(a), "[a]n inmate shall be permitted to be present throughout the disciplinary hearing except during the necessary deliberations of the Disciplinary Hearing Officer . . . and except in instances where . . . security would be jeopardized by the inmate's presence." If the inmate is excluded, the reasons for doing so must be well documented in the record. N.J.A.C. 10A:4-9.10(b). If and when an inmate refuses to appear at his hearing, N.J.A.C. 10A:4-9.11 dictates that the disciplinary hearing officer must conduct an "in absentia hearing," which requires that the inmate sign a refusal notice indicating that he voluntarily refuses to appear at the hearing and understands that it will be held in his absence. N.J.A.C. 10A:4-9.11(b).

The inmate's rights to present and challenge evidence are codified in N.J.A.C. 10A:4-9.13 and 9.14. Pursuant to N.J.A.C. 10A:4-9.14(a), an inmate or his counsel substitute may confront and cross-examine the accuser or the State's witnesses if the hearing officer "deems it necessary for an adequate presentation of the evidence, particularly when serious credibility issues are concerned." Pursuant to N.J.A.C. 10A:4-9.13(a), "[i]f requested, an inmate or counsel substitute shall be provided the opportunity to call and question in-person a fact witness(es)" unless to do so would, in the judgment of the hearing officer, implicate one of the categories set forth in section N.J.A.C. 10A:4-9.13(b). If the inmate's request to call witnesses or access evidence is denied, the reasons for the denial must be explicitly noted in the hearing report. N.J.A.C. 10A:4-9.13(e).

The critical question facing this court is whether there is substantial, credible evidence in the record supporting the conclusion that Munoz was present at his proceeding and participated in the process of his disciplinary proceeding. There is a direct conflict between the testimony of Munoz, who claims he was not at his hearing and had no influence over his counsel substitute's representation, and that of the hearing officer and counsel substitute, who indicated (with a checkmark in section 9 and a signature attesting to accuracy, respectively) that Munoz pleaded not guilty, presupposing that he was present at the hearing.

This case thus raises the possibility that the use of a counsel substitute may have served to diminish, rather than protect the rights of an inmate charged with a disciplinary violation. Where Munoz alleges that he was never provided with an opportunity to confront witnesses against him and produce both witnesses and evidence in his favor, Munoz's counsel substitute signed the "acknowledgement" section on the Hearing Form indicating that Munoz waived his right to present any evidence, request the presence of any witnesses on his behalf, or confront the witnesses against him. And most critically, Munoz claims that he was not present at his hearing, despite his counsel substitute's attestation on the Hearing Form that Munoz pleaded "not guilty," and, as stated in section 15, "declined" the Hearing Officer's offer to request adverse witnesses. Essentially, Munoz claims that a counsel substitute served as his proxy throughout all portions of the disciplinary proceedings either without Munoz's authorization or acting contrary to Munoz's wishes.

We are troubled by the cursory nature of the Hearing Officer's notations on the Hearing Form, given the seriousness of Munoz's allegation that he was not allowed to be present at his disciplinary proceeding. The Court has remanded inmate disciplinary proceedings where the hearing officer's perfunctory or vague notations were insufficient to establish that certain procedural safeguards were provided. McDonald, supra, 139 N.J. at 200. In McDonald, the inmate and his counsel substitute claimed on appeal that they requested, but were denied an opportunity to call certain witnesses and to cross-examine the witnesses who actually testified. Ibid. The entry for cross-examination on the adjudication form bore the words "not requested," with no further explanation for the refusal. Ibid. The Court stated that "[s]uch murky disclosures at this stage of appellate review illustrates the need for creation of a clear written record at each disciplinary hearing." Ibid. Accordingly, the Court remanded the case to the DOC to clarify whether McDonald, in fact, requested witnesses and had an opportunity to cross-examine at the original hearing.

Like the Court in McDonald, we are constrained to remand this case for further proceedings because neither the Hearing Form nor the entire record provides sufficient evidence that Munoz was present at his hearing or in any way participated in his disciplinary process. Munoz contends that he was "handed a decision without ever seeing a hearing officer"; this is a serious allegation, and, if true, would be a clear violation of due process. Avant, supra, 67 N.J. at 529.

The record is entirely devoid of proof of Munoz's assent to counsel substitute's handling of the case, and given the superficiality of the notations on the Hearing Form, we cannot be certain that Munoz's "statements" were not actually coming from Munoz's counsel substitute without authorization from Munoz.

The DOC's posture regarding Munoz's burden to prove his presence at the hearing demonstrates the futility of the plight of an inmate denied access to a hearing. The DOC's brief states that "[n]othing, aside from Munoz's bald allegations . . . indicates that he was not present." While we recognize that an appellant attacking an agency finding on appeal bears the burden of proof, we also recognize that, practically speaking, the inmate has little, if any, control over the creation of the record. This is especially true when the inmate claims that he was wrongfully denied access to the body that creates the record. In this case, the DOC suggests that the inmate was present at his hearing without actually saying so; it then places a nearly impossible burden on the inmate to overcome that suggestion without providing the evidentiary means to do so. Overall, we find that due process requires a more reliable method by which to verify that the inmate was actually present during his hearing. This conclusion comports with prior decisions in which the Supreme Court has indicated that the burdens of persuasion and production should be imposed on the party best able to satisfy those burdens due to greater access to relevant information. See J.E. ex rel. G.E. v. State, 131 N.J. 522, 569-70 (1993).

The DOC could have avoided this outcome by either having the inmate sign the "acknowledgement" section, or by providing more narrative in the Hearing Form, demonstrating that the inmate was present and heard and answered the questions posed to him.

Overall, we are concerned by the ease with which the DOC could dilute due process requirements by assigning substitute counsel as inmate proxies in the manner alleged by Munoz. We therefore remand for a clearer record of the proceeding providing more proof of Munoz's participation in the disciplinary process.

Remanded. We do not retain jurisdiction.

 

We note that the copy of Munoz's certification in the appendix was not signed in an apparent oversight. However, because the letter brief on which the certification relies was submitted and signed by Munoz and contains the same allegations (namely, that he was denied a hearing and the right of cross-examination), we find that the absence of a signature on Munoz's certification does not affect his case. Furthermore, Munoz's handwritten appeal to the Administrator was signed by Munoz and contains the same allegations of fact.

(continued)

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A-2766-07T3

November 20, 2009