ERNEST BUFFALOE v. NEW JERSEY DEPARTMENT OF CORRECTIONS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6247-07T16247-07T1

ERNEST BUFFALOE,

Appellant,

V.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Defendant.

_________________________________________________

 

Submitted March 4, 2009 - Decided

Before Judges Payne and Lyons.

On appeal from a Final Decision of the New

Jersey Department of Corrections.

Ernest Buffaloe, appellant, pro se.

Anne Milgram, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel,

John P. Cardwell, Deputy Attorney General,

on the brief).

PER CURIAM

Ernest Buffaloe, a State prisoner, challenges the manner in which charges of violation of .703, failure to comply with a written rule or regulation of the correctional facility and *.005, threatening another with bodily harm (see N.J.A.C. 10A:4-4.1), were adjudicated, claiming a deprivation of due process rights.

On June 26, 2008, SCO Durham alleged that he observed Buffaloe in cell 1073, whereas he was assigned to cell 1076, a violation of an institutional rule prohibiting intra-cell visitation. Buffaloe was directed to report to Durham's desk with his I.D. card. Durham claims that when Buffaloe did so, Buffaloe stated: "You give me another 5 days L.O.R.P. [loss of recreation period] I'll fuck you up." Buffaloe was then taken off the unit.

On June 27, 2008, charges were served on Buffaloe. With respect to the alleged cell visitation, he was charged with .709 failure to comply with a written rule or regulation of the correctional facility. Specifically, he was charged with violation of Rule 29 of the inmate handbook, which on page 62 stated: "Their [sic] will be no inter-cell visitation."

The investigation report regarding this offense disclosed no request by Buffaloe for witness statements. With respect to the *.005 charge, Buffaloe similarly requested no witness statements. The matters were referred for a courtline hearing.

That hearing took place on Monday, June 30, 2008. Counsel substitute represented Buffaloe, who pled not guilty to both charges. At the hearing, Buffaloe denied entering cell 1073. He stated:

I wasn't in that cell. I didn't ask for witnesses. I don't know that gentleman's name. I went to the cell. I never went inside. I was there for about 3 minutes.

Counsel substitute argued that the rules were not clear that violation of the specified rule would result in discipline.

At the conclusion of the hearing, the hearing officer found Buffaloe guilty of the .709 charge, but she based her determination on his violation of a different Rule, Rule 28, prohibiting loitering. The hearing officer noted that Buffaloe was already serving 5 days L.O.R.P., and she stated: "I[nmate] must comply to rules/regulations and sanctions when any rules are violated." A sanction of thirty days of L.O.R.P. was imposed. The adjudication form stated that Buffaloe had been offered the right to call witnesses during the investigation and at the hearing, but had declined. The form further stated: "Offered to confront adverse witness. I/M declined HO offer."

In connection with the *.005 charge, Buffaloe testified that he did not threaten Durham; he walked away. Buffaloe claimed: "He thought he heard something." In finding Buffaloe guilty as charged, the hearing officer implicitly accepted Durham's report as true, noting that Buffaloe had offered no evidence to support his position. Ruling that Buffaloe's words constituted a threat, the officer sanctioned him with fifteen days of detention, 365 days of administrative segregation and 365 days of loss of commutation time. The adjudication form contained the same comments regarding witnesses that were set forth on the adjudication of the .709 charge.

On appeal to the Commissioner, defendant argued that such a serious charge should not have been adjudicated without "the missing witnesses"; confrontation was required when opposing views of the facts were offered, and without confrontation, the adjudication was not supported by valid substantial evidence; the language used did not constitute a threat; procedural safeguards were absent; and the sanction was disproportionate to the offense. Buffaloe's arguments were rejected, and the adjudications and sanctions were upheld. This appeal followed.

On appeal, Buffaloe argues that he was denied due process by the hearing officer when, without notice, she relied on an uncharged prohibited act to support the .709 charge. In this regard, Buffaloe relies on N.J.A.C. 10A:4-9.16, which provides:

(a) Whenever it becomes apparent at a disciplinary hearing that an incorrect prohibited act is cited in the disciplinary report but that the inmate may have committed another prohibited act, the Adjustment Committee or Disciplinary Hearing Officer shall modify the charge. The inmate shall be given the option of a 24-hour postponement to prepare his or her defense against the new charge or have the new charge adjudicated at that time.

That choice was not afforded to Buffaloe.

The State argues that this regulation is not implicated because the .709 charge remained unchanged. We disagree. Due process requires notice "of the charges . . . to enable [the inmate] to marshal the facts and prepare a defense." Avant v. Clifford, 67 N.J. 496, 525 (1975). Such notice is incomplete when the acts giving rise to the charge are misidentified. In this case, Buffaloe admitted to stopping before a cell that was not his own. However, by not being informed that such conduct could be sanctioned, Buffaloe was deprived of the opportunity to demonstrate that his conduct did not constitute loitering or to challenge the rule as a basis for discipline. The adjudication is therefore reversed.

We reject Buffaloe's arguments that pertain to the *.005 adjudication. We find nothing in the record to support Buffaloe's contention that he was denied his right to confrontation, and no precedent to buttress his claim that, absent such confrontation, the adjudication lacked evidentiary support. We are further satisfied that the language used by Buffaloe when addressing Durham objectively conveyed a basis for fear, as Jacobs requires. Jacobs v. Stephens, 139 N.J. 212, 222 (1995). As a final matter, we find that the hearing officer's findings of fact in support of the adjudication of the *.005 charge were adequate, and that Buffaloe's arguments to the contrary do not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part; reversed in part and remanded.

 

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A-6247-07T1

June 16, 2009