NEW JERSEY DEPARTMENT OF CORRECTIONS v. DOMINIC MCGRIFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1387-11T3

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent,

v.

DOMINIC MCGRIFF,

Appellant.

________________________________

April 24, 2013

Submitted April 8, 2013 Decided

Before Judges Fasciale and Maven.

On appeal from the New Jersey Department of Corrections.

Dominic McGriff, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Dominic McGriff appeals from an October 19, 2011 order by the Department of Corrections (DOC) finding him guilty of disciplinary infraction *.011, possession or exhibition of anything related to a security threat group [(STG)], in violation of N.J.A.C. 10A:4-4.1(a). He challenges the sufficiency of the evidence and contends that the DOC improperly held a hearing without his presence and denied him his right to call witnesses. We affirm.

The Special Investigation Division (SID) reviewed McGriff's telephone calls and heard him explain to the caller how he informed fellow gang inmates that "[i]f the police say something[,] I'm fighting. . . . [W]hoever don't ride with me[,] . . . I'm whipping your ass." McGriff told the caller that the inmates responded by stating, "We got you bro." The SID concluded that McGriff's statements

exhibited language related to an STG, indicated that he is a ranking member of the gang, and that any inmate who does not help him will be disciplined. Thereafter, the DOC notified McGriff of the charge.

A Hearing Officer (HO) scheduled a hearing for September 30, 2011, but postponed it to obtain the SID report.1 McGriff requested a counsel substitute, which was granted, and pled not guilty. On October 18, 2011, the HO conducted a hearing and found that there was substantial credible evidence of McGriff's guilt. The HO sanctioned McGriff to 15 days' detention, 300 days' administrative segregation, and 300 days' loss of commutation time.

McGriff filed an administrative appeal asking that his sanctions be rescinded or modified because "he was not afforded an opportunity to be present during the hearing." The Associate Administrator reviewed the evidence and upheld the HO's ruling and related sanctions. In his written decision, the Associate Administrator noted that the HO's decision was "based on substantial evidence," as there were "[s]taff reports and analysis of [McGriff's] telephone conversation by the [SID, which] yield conclusive results related to STG [gang]. Therefore, I must hold you accountable for carrying out gang related transactions in a security facility. . . . The sanction imposed by the [HO] is proportionate to the offense."

On appeal, McGriff contends that the HO lacked substantial evidence to support the guilty finding, and that the HO improperly held the hearing without his presence and denied him his right to call witnesses. We disagree.

Our review of the DOC's decision is limited. We will reverse only when the agency's decision is arbitrary, capricious, or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (indicating that a court must uphold an agency's findings, even if "it would have reached a different result," so long as "sufficient credible evidence in the record" exists to support the agency's conclusions"). Moreover, "[t]he courts must afford appropriate deference and flexibility to [s]tate officials trying to manage a volatile environment." Blyther v. N.J. Dep't of Corrections, 322 N.J. Super. 56, 65 (App. Div. 1999), certif. denied, 162 N.J. 196 (1999).

We conclude that the DOC's final decision is supported by sufficient credible evidence in the record. In reviewing McGriff's telephone calls, the SID investigator concluded that "McGriff used language that was related to being affiliated with the . . . [gang]." The investigator's determination is entitled to "appropriate deference." See Blyther, supra, 322 N.J. Super. at 65.

An inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of counsel substitute. Id. at 523-29.

Here, there is no support for McGriff's assertion that he was not present during the October 18, 2011 hearing. Additionally, McGriff's substitute counsel confirmed that he declined the opportunity to request "or confront" witnesses. We conclude that McGriff was afforded the process an inmate is due. See Avant, supra, 67 N.J. at 522.

Affirmed.

1 An October 3, 2011 hearing was also postponed due to the lack of the SID report.