JEFFREY HICKS 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NOT FOR PUBLICATION WITHOUT THE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-0

JEFFREY HICKS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________

SubmittedJuly 9, 2013 Decided July23, 2013

Before Judges Ostrer and Hayden.

On appeal from the New Jersey Department of Corrections.

Jeffrey Hicks, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).

PER CURIAM

Jeffrey Hicks, an inmate at Bayside State Prison, appeals from a final determination of the Department of Corrections (Department) that he possessed an electronic communication device specifically, an LG wall charger in violation of *.009, as set forth in N.J.A.C.10A:4-4.1.1 The hearing officer imposed 15 days of detention, 180 days of administrative segregation, 180 days lost commutation time, and permanent loss of contact visits. An assistant superintendent thereafter upheld the decision of the hearing officer.

On appeal, Hicks argues: (1) there was insufficient evidence to establish that he possessed the device; and (2) the wall charger is not an "electronic communication device" as defined by DOC regulations. We agree and reverse.

I.

The charges arose from a routine search of the cottage-room that Hicks occupied with three other inmates. The preliminary incident report indicates that each inmate was assigned a "bed area." The search, conducted on February 17, 2012, uncovered an "LG U.S.B. cord for an LG cell phone and an altered razor with the safety guard removed concealed in a wall locker assigned to inmate [Jahi] Shakur," one of Hicks's roommates. An officer found the LG charger in the area assigned to another roommate. The incident report states, "Compound Patrol Officer Green searched bed 7 and found an LG plug with U.S.B. connection on the T.V. stand next to the T.V. Bed 7 is assigned to inmate [Andre] Williams[.]" No other contraband was found in the room, including Hicks's bed area and that of the other occupant, Rodney Parks.2 Also, it did not indicate the discovery of a cell phone or other electronic device with which the charger or cord could be used.

The charger, as depicted in a photograph admitted into evidence at the disciplinary hearing, was cube-shaped, with prongs to insert into a standard wall electric outlet, and a slot for insertion of a USB cord. We understand such devices are typically used to convert an electric current from a wall outlet, and transmit the current through a USB cord, for the purpose of charging the battery of an electronic device, or directly powering an electronic device. There is no evidence in the record to indicate the charger was used for any other purpose.

Based on his alleged possession of the charger on the T.V. stand but not the USB cord in the locker the Department initially charged Hicks with violating provision .210 of the prison disciplinary code, which prohibits "possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels." N.J.A.C.10A:4-4.1. However, the hearing officer, pursuant to N.J.A.C.10A:4-9.16, modified the charge to allege a violation of provision *.009:

* .009 misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention (see "electronic communication device" definition at N.J.A.C.10A:1-2.2).

[N.J.A.C.10A:4-4.1.]

"Electronic communication device" is defined to mean:

a device or related equipment or peripheral that is capable of electronically receiving, transmitting or storing a message, image or data. Examples of such electronic devices include, but are not limited to, all types and sizes of a computer, telephone, two-way radio, camera or video/audio player/recorder, fax machine, pager or beeper, personal data assistant, hand-held e-mail system, or any other device containing a means of internet access or receiving, transmitting or storing information electronically by means of audio, visual or recorded data.

[N.J.A.C.10A:1-2.2.]

Hicks pleaded not guilty to the charge. Apparently, the other three inmates were also charged with disciplinary violations. Although the record does not include the specific charges or their disposition, one document reflected that Hicks, Williams, and Parks "[a]ll live in cottage 13 and pleaded not guilty," but did not refer to Shakur, whose locker reportedly contained the cord and altered razor.

The assistant superintendent rejected Hicks's argument that he lacked possession. The Department's finding of possession was apparently based solely on the circumstantial evidence that Hicks occupied the room where the charger was found, and neither he nor any other occupant admitted ownership.

The "[s]ummary of evidence relied on to reach decision" reported in the hearing officer's adjudication stated, "I/M pleads not guilty. Ofc Green conducted a search of cottage 13 and found a LG USB cord in unsecure Locker #8 and a charger next to the T.V. stand[.]"3 The hearing officer explained the reason for the sanction to be, "Evidence taken into consideration I/M are not allow [sic] to be in possession of electrical device[.]"

II.

A.

We begin by summarizing our standard of review, and pertinent principles governing our interpretation of the Department's regulations governing prisoner discipline.

We recognize that our review of the Department's decision is limited. We will disturb a disciplinary decision of the Department only upon a finding that the decision is arbitrary, capricious or unreasonable, or is unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J.571, 579-80 (1980). In determining whether an agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law;(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[In re Carter, 191 N.J.474, 482 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J.22, 25 (1995)).]

Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," and "evidence furnishing a reasonable basis for the agency's action." Figueroa v. N.J. Dep't of Corrs., 414 N.J. Super. 186, 192 (App. Div. 2010) (citations and quotations omitted).

A reviewing court "may not substitute its own judgment for the agency's, even though the court might have reached a different result." In re Stallworth, 208 N.J.182, 194 (2011) (citation and quotation omitted). On the other hand, as we stated in Figueroa, supra, our review is not "perfunctory," nor is "our function . . . merely [to] rubberstamp an agency's decision[.]" 414 N.J. Super. at 191 (citing Blackwell v. Dep't of Corrs., 348 N.J. Super. 117, 123 (App. Div. 2002) and Williams v. Dep't of Corrs., 330 N.J. Super.197, 204 (App. Div. 2000)). "[R]ather, our function is 'to engage in a careful and principled consideration of the agency record and findings.'" Ibid.(quoting Williams, supra, 330 N.J. Super.at 204). To enable us to exercise this function, the agency must provide a reasonable record and statement of its findings. Blyther v. N.J. Dep't of Corrs., 322 N.J. Super. 56, 63 (App. Div.) ("No matter how great a deference we must accord the administrative determination, we have no capacity to review the issues at all unless there is some kind of reasonable factual record developed by the administrative agency and the agency has stated its reasons with particularity." (internal quotation and citation omitted)), certif. denied, 162 N.J.196 (1999).

Also, the interpretation of the Department's regulations is a purely legal issue, which we consider de novo. Klawitter v. City of Trenton, 395 N.J. Super. 302, 318 (App. Div. 2007). We give some deference to an agency's interpretation of regulations that are "'within its implementing and enforcing responsibility.'" Utley v. Bd. of Review, 194 N.J.534, 551 (2008) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super.93, 102 (App. Div. 1997)). We do so because the agency that drafted and promulgated the rule should know its meaning. Essex Cnty. Bd. of Taxation v. Twp. of Caldwell, 21 N.J. Tax188, 197 (App. Div.) (citation omitted), certif. denied, 176 N.J.426 (2003). However, "[a]n appellate tribunal is . . . in no way bound by the agency's . . . determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.85, 93 (1973). Thus, we may intervene when an agency's decision rests upon a misinterpretation of a regulation. Mazza, supra, 143 N.J.at 25.

We are also mindful that the Department has "broad discretionary powers" to promulgate regulations governing correctional facilities. Jenkins v. Fauver, 108 N.J.239, 252 (1987). We have noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corrs., 324 N.J. Super. 576, 584 (App. Div. 1999).

Nonetheless, administrative regulations must be "sufficiently definite" to provide notice to those governed by them. In re Review of Admin. Promulgation of the Health Care Admin. Bd., 83 N.J.67, 82, appeal dism. and cert. denied, 449 U.S. 944, 101 S. Ct. 342, 66 L. Ed. 2d 208 (1980). "Notice of conduct that is prohibited is a basic component of due process and fundamental fairness in prison disciplinary proceedings." Jenkins v. N.J. Dep't of Corrs., 412 N.J. Super. 243, 251 (App. Div. 2010) (citation omitted) (rejecting vagueness challenge to disciplinary regulation). "The test is whether the statute gives a person of ordinary intelligence fair notice that his conduct is forbidden and punishable by certain penalties." In re Suspension or Revocation of the License of DeMarco, 83 N.J.25, 37 (1980) (construing statute authorizing Board of Medical Examiners to impose penalties for violating provision of regulatory law); see alsoJenkins, supra, 412 N.J. Super.at 252 ("Therefore, in analyzing the clarity of the regulation, it is expected that a person of ordinary intelligence who is affected by the standard will use common sense and be guided by principles applicable to the context." (citations omitted)).

In interpreting a regulation, we look to the same canons of construction applied to statutes. Essex Cnty. Welfare Bd. v. Klein, 149 N.J. Super. 241, 247 (App. Div. 1977). We look first to the regulation's plain language. Cruz-Diaz v. Hendricks, 409 N.J. Super. 268, 275-76 (App. Div.) (stating, when interpreting regulations, court must consider plain meaning of the language used, assuming the drafter meant to ascribe to the words their ordinary meaning), certif. denied, 200 N.J.548 (2009). If there is ambiguity, we endeavor to construe the regulation to implement the apparent intent or purpose of its adoption. Seacoast Builders Corp. v. Jackson Twp. Bd. of Educ., 363 N.J. Super. 373, 378-79 (App. Div. 2003) (where regulation is ambiguous and court is unassisted by prior history of agency construction, "the key to decision lies in the public policy" underlying the regulation). Where ambiguity remains, we should construe the disciplinary provision strictly, given the penal consequences of violation. SeeState Bd. of Med. Exam'rs of N.J. v. Warren Hosp., 102 N.J. Super. 407, 414-17 (Cty. Ct. 1968) (strictly construing provision authorizing civil penalties for violation of medical licensing law, N.J.S.A.45:9-22), aff'd o.b., 104 N.J. Super.409 (App. Div.), certif. denied, 54 N.J.100 (1969); see alsoNorman J. Singer & J.D. Shambie Singer, 3 Sutherland Statutory Construction 59:1 at 155 (7th ed. 2008) ("If there is some sanction in the statute to compel obedience beyond mere redress to an individual for injuries received, the statute is penal.").

B.

Applying these principles, we reject the State's argument that the wall charger qualified as an "electronic communication device" as defined in the Department's regulation. The State contends that it is irrelevant whether the plug transmits data as opposed to electric current because the plug is "equipment or peripheral" designed to be attached to devices that do transmit data, specifically, a USB cable and a cell phone. The State misreads the regulation.

Turning to the language of the *.009 violation, the phrase "capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data" describes not only an "electronic equipment device," but also describes "equipment or peripheral." The regulation proscribes "possession [of] . . . an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data[.]" Thus, the "equipment or peripheral" must be capable of transmitting a message, image or data to qualify.

The separate definition of electronic communication device supports this interpretation. It refers to "a device or related equipment or peripheral that is capable of electronically receiving, transmitting or storing a message, image or data." N.J.A.C.10A:1-2.2. The examples listed in the definition are all items which themselves transmit data, images or messages as opposed to being attached to something that does. The regulation refers to "all types and sizes of a computer, telephone, two-way radio, camera or video/audio player/recorder, fax machine, pager or beeper, personal data assistant, hand-held e-mail system, or any other device containing a means of internet access or receiving, transmitting or storing information electronically by means of audio, visual or recorded data." Ibid. Wall chargers are not listed.

We note that some kinds of "related equipment or peripheral" obviously transmit data. A dictionary definition of "peripheral" states it is "[a]n auxiliary device, such as a printer, modem or storage system, that works in conjunction with a computer." American Heritage Dictionary1311 (5th ed. 2011). Data is transmitted to a printer to enable it to produce a printed embodiment of data or images. Likewise, a modem or storage device can store, receive or transmit data. However, there is no record evidence that the charger plug was capable of doing so.

To the extent one might find the regulation to be ambiguous although we do not find that it is such ambiguity must be construed against the agency, given the penal consequences of a violation. We do not question the Department's authority, in the exercise of its responsibility to assure the security of its facilities, to prohibit possession of items like the wall charger. However, the Department's regulation, as written, does not accomplish that.

We also agree with Hicks that the record lacks sufficient evidence to establish that he personally possessed the plug.4 The State argues that Hicks was correctly found to possess the charger because it was "found in a common area that he shared with others, and there was no evidence to suggest whose it was" and "if no inmate takes responsibility for the contraband, then all inmates will be charged with possession." We disagree.

Inasmuch as Hicks did not physically possess the charger, the agency must rely on the notion of constructive possession. "[A] person has constructive possession of an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Morrison, 188 N.J.2, 14 (2006) (citations and quotations omitted). In Figueroa, supra, we applied concepts of possession found in the Criminal Code, as the Department's disciplinary regulations lack their own definition of possession.

Although the term "possession" is not contained in the definitional sections of the administrative code governing inmate discipline, N.J.A.C.10A:1-2.2 and N.J.A.C.10A-4-1.3, we are satisfied that in the context of prohibited act *.203, we should construe the term as the Court defined it for the purpose of imposing criminal liability under statutes charging individuals with possession of controlled dangerous substances, that is, "possession . . . signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character." Thus, an inmate cannot be found guilty of possession of a prohibited drug "unless [there is sufficient proof] that he knew or was aware, at a minimum, that he possessed [the drug]."

[Figueroa, supra, 414 N.J. Super.at 192 (emphasis omitted) (quoting State v. Pena, 178 N.J.297, 305 (2004)).]

The report of the search states that the plug was found during the search of bed area 7, which was assigned to Andre Williams, one of Hicks's roommates. Although the T.V. stand was presumably open and physically accessible to the other inmates, it is inaccurate to refer to it as a common area. Presumably, the inmates exercised some modicum of control over their respective bed areas.

Moreover, even if Hicks were capable of exercising control over the charger, there was no evidence that he intended to do so. Rather, it would appear more reasonable, based on the location of the charger, to infer that roommate Williams, if anyone, had an intent to control the charger, as it was found in his area. Guilt may not be assigned to Hicks simply because none of his roommates admitted possession of the item. It was still the Department's burden to prove at the hearing sufficient evidence to establish the charge against Hicks. The Department's disciplinary actions "must be based on more than a subjective hunch, conjecture or surmise of the factfinder." Figueroa, supra, 414 N.J. Super.at 191.

In sum, we conclude that the wall charger was not an electronic communication device banned by *.009. Also, the record lacks sufficient credible evidence to support the Department's finding that Hicks possessed the item.

1 Department Inmate Disciplinary Regulations classify "asterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1; see also Hetsberger v. Dep't of Corrs., 395 N.J. Super. 548, 556 (App. Div. 2007).

2 The record also refers to this inmate as Rodney Parker.

3 We can find no basis in the record for the hearing officer's conclusion that the charge was found "next to" the T.V. stand, as opposed to "on" the stand, as reported by the personnel who conducted the search.

4 We address this issue, inasmuch as the Department initially charged Hicks with the non-asterisk violation, 210, of possessing "anything not authorized[.]"