GREGORY HICKMAN 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NOT FOR PUBLICATION WITHOUT THE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-0314-10T3

GREGORY HICKMAN,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

______________________________

October 18, 2011

Submitted October 3, 2011 - Decided

Before Judges Parrillo and Grall.

On appeal from the Department of

Corrections.

Gregory Hickman, appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Emily A. Samuels, Deputy Attorney General,

on the brief).

PER CURIAM

Appellant Gregory Hickman is an inmate incarcerated at Northern State Prison. He is serving the remainder of a sentence for robbery following revocation of his parole. Hickman appeals from a final decision of the Department of Corrections (Department) finding him guilty of a prohibited act, specifically *.011, "possession or exhibition of anything related to a security threat group." N.J.A.C. 10A:4-4.1(a). The sanctions imposed were: fifteen days of detention less time served; 365 days' loss of commutation time; 365 days of administration segregation; thirty days' loss of recreation; and confiscation of the materials. We affirm.

On the date of the infraction, July 14, 2010, Hickman was confined at Bayside Prison. Senior Corrections Officer Mark Saboski took inventory of Hickman's belongings and found a large envelope containing six documents that were security threat group materials. He confiscated the items, placed them in the evidence locker and prepared a written charge alleging a violation of *.011. Hickman was placed in pre-hearing detention that day on authorization of the prison's director of custody operations and in accordance with N.J.A.C. 10A:4-10.1.

Subsequently, Investigator Clark, of the Special Investigations Division Intelligence Section, reviewed the materials seized by Saboski. Clark concluded that they were security threat group materials, specifically identifying the Five Percent Nation. His report refers to passages and phrases identifiable as used by "5%ers," and it includes a description of the training Clark had in recognition and identification of security threat group materials.

There was an error in Saboski's report of his investigation. Saboski used Hickman's correct inmate number, 280060, but not his correct SBI number, 979949B. Instead, Saboski wrote 997904B as Hickman's SBI number on the form. Sergeant W.L. Williams, who reviewed the form, noticed the error, corrected it and wrote his initials in the margin next to the alteration. He made the correction on July 14, and then served the charge on Hickman. Hickman was the only inmate with that surname in Bayside on July 14.

On July 16, before a hearing on the charge could be held, Hickman was transferred to Mid-State Correctional Facility and placed in the general population, rather than pre-hearing detention. Hearings at Mid-State are held once a week, and the next hearing date was July 22. The inmate was then transferred to Garden State Youth Correctional Facility on July 21, and the information on the charge reached Garden State on July 23. The first available hearing date at Garden State was July 26; counsel substitute was appointed for Hickman that day. Hickman stated that he had no witnesses to call. Hickman raised two defenses based on procedural defects: the delay in his hearing and the erroneous SBI number, which he claimed indicated that the officer had charged the wrong inmate.

The hearing officer rejected the defenses. He explained that the errors in the SBI numbers were reasonably explained to be clerical. He further found that Hickman's state number was the same on all of the documents and that Hickman was the only inmate with that name in Bayside on the date of the infraction. On those findings, the hearing officer concluded that the mistake was inconsequential and did not undermine the evidence establishing that Hickman was in possession of security threat group materials on July 14.

With respect to the delay in the hearing, the officer concluded that Hickman's transfer, which resulted in his removal from pre-hearing detention and contributed to postponement of the hearing, resulted in delayed transmittal of the record to the hearing officer. Given the nature of Hickman's defense and the brevity of the period during which he was in pre-hearing confinement, the hearing officer concluded that the delay was reasonable, did not result in hardship or prejudice and was based on a serious charge.

On his administrative appeal, Hickman denied possessing the materials and contended that the delays in the hearing, resulting from his transfers, warranted dismissal of the charge. The administrator upheld the decision.

Hickman raises four arguments in his initial brief. We consider them in turn.

First, referring to his transfer from Bayside, which resulted in his removal from pre-hearing detention and extended the time within which the hearing was expected to be held from three to seven days, N.J.A.C. 10A:4-9.8(b)-(c), Hickman argues:

Appellant's right to due process guaranteed by the Fourteenth Amendment was violated . . . when the court line hearing officer failed to postpone in order to preserve time line.

Under the Department's regulations, failure to hold a hearing within the time set forth in N.J.A.C. 10A:4-9.8, does not require dismissal of the charge. N.J.A.C. 10A:4-9.9(a). Rather, the hearing officer is permitted to dismiss the charge after considering the length of and reasons for the delay, prejudice to the inmate in preparing a defense and the seriousness of the infraction. N.J.A.C. 10A:4-9.9(a)(1)-(4).

In this case, the hearing officer considered the pertinent criteria and reached a conclusion that is supported by the record and consistent with the regulation. Because there was no violation of the regulations, we have no reason to consider Hickman's claim that a violation of a right provided in a regulation amounts to a constitutional violation.

Hickman's second argument is based on the mistaken recordation of his SBI number. He argues:

The hearing officer's finding of guilt must be reversed because of the procedural error in the foundation of the charge.

This issue does not require extensive discussion. The clerical error was not a procedural defect in the charge. Substantially for the reasons stated by the hearing officer, which the Administrator accepted and adopted, we reject the claim that the error raised a genuine question about the identity of the inmate in possession of the materials. The hearings officer's findings are adequately supported by the record. For that reason, this court has no authority to disturb them. Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005); see Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (discussing review of decisions of an administrative agency).

Hickman's third issue is based on the fact that the hearing officer referred to "STG/Blood documents," not STG/Five Percent Nation documents. He argues:

My due process rights were violated when court line failed to investigate the evidence before the committee.

Hickman's description of the hearing officer's statement is accurate, and the reference to Blood material is not easily understood. Hickman, however, did not raise this issue on his administrative appeal, and it is not properly raised for the first time on this appeal. In any event, the factual error is harmless. The identity of the security threat group was not a matter in dispute at the hearing, and there is no indication that the identity of the group played any role in the sanction imposed. Because the evidence adequately supports the finding that the materials were related to a group identified as a security threat group in accordance with N.J.A.C. 10A:5-6.5, we reject this claim. Johnson, supra, 375 N.J. Super. at 352.

Hickman's fourth point is based on an assertion that the materials had no violent overtones. On that ground, he argues:

The sanction imposed was disproportionate to the offense.

A security threat group is one that "poses a threat to the safety of staff, other inmates or the community and to the orderly operation of the correctional facility." N.J.A.C. 10A:1-2.2. Based on that definition, we conclude that this argument lacks sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).

We note that Hickman raises additional arguments in his reply brief. They are of insufficient public import to warrant deviation from customary principles of appellate practice. In re Bell Atlantic-New Jersey, Inc., 342 N.J. Super. 439, 442-43 (App. Div. 2001).

Affirmed.