MEZAAC PIERRE 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NOT FOR PUBLICATION WITHOUT THE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-2008-04T52008-04T5

MEZAAC PIERRE,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent-Respondent.

__________________________________

 
 

Submitted January 11, 2006 - Decided February 2, 2006

Before Judges Wefing and Fuentes.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Appellant submitted a pro se brief.

Peter C. Harvey, Attorney General,

attorney for respondent (Patrick DeAlmeida,

Assistant Attorney General, of counsel;

Lisa A. Puglisi, Deputy Attorney General,

on the brief).

PER CURIAM

Mezaac Pierre is an inmate serving a custodial sentence. He appeals from a Final Decision of the Department of Corrections entered at the conclusion of disciplinary proceedings. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Pierre was charged with two offenses--*.003, assaulting any person with a weapon, and *.011, possession or exhibition of anything related to a security threat group. Following a hearing, he was found guilty of both offenses, and he was sanctioned with fifteen days in detention, one hundred eighty days loss of commutation time and one hundred eighty days confinement in administrative segregation. The sanctions were directed to be served consecutively; thus, the aggregate sanction was thirty days in confinement, three hundred sixty days loss of commutation time and three hundred sixty days in administrative segregation. On appeal, Pierre raises the following contention:

I THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE IT IS BASED ON PROCEEDINGS THAT VIOLATED APPELLANT'S DUE PROCESS RIGHTS

a. Evidence on the record is insufficient.

b. The statement of reasons is inadequate.

At the disciplinary hearing, Pierre did not challenge the *.003 offense but did contest the *.011 offense. On appeal, he again challenges the *.011 offense as well as the consecutive nature of the sanctions.

After Pierre was charged with assaulting another inmate, he was placed in prehearing detention, and his cell was searched. That search uncovered a pair of boots in his foot locker with laces tied in an unusual manner. The boots were seized, photographed and reviewed by Craig Sante, a member of the Intelligence Section of the Special Investigation Division. Sante issued a report in which, based upon his training and experience, he concluded the laces had been placed to form a downward pitchfork, an indication of a gang known as the "Bloods."

It is well-settled that the scope of our review in matters such as this is limited. Karins v. City of Atl. City, 152 N.J. 532, 540 (1988); Brady v. Dep't of Pers., 149 N.J. 244, 256-57 (1997). "We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (remanding for a new hearing when there was no explanation why a confidential informant was deemed credible).

An inmate charged with a disciplinary infraction is entitled to certain limited rights, including receipt of written notice of the charges at least twenty-four hours in advance of the hearing, an impartial hearing officer, a limited right to call witnesses and present evidence, a limited right of confrontation, a written statement of reasons for the sanctions imposed and the evidence relied on and, in certain instances, the assistance of counsel substitute. McDonald v. Pinchak, 139 N.J. 188, 195-99 (1995); Avant v. Clifford, 67 N.J. 496, 525-533 (1975).

Further, we have recognized that "determining whether prison materials are gang related constitutes a particular Department of Corrections' expertise that is usually exercised by staff members . . ." Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003) (remanding for a rehearing when the hearing officer did not explain why the materials seized were deemed to be gang related).

Here, the proceedings against appellant did not contain the deficiencies that we criticized in Balagun, supra, 361 N.J. Super. 199. In that case, not only did the hearing officer not provide an explanation for the decision, but the record did not contain the materials which formed the basis of the charge against inmate Balagun, and it was, thus, impossible for us to perform our review function. Id. at 203. Here, the hearing officer cited Sante's report that a downward pitchfork is a recognized symbol of the Bloods.

 
We have reviewed the record in light of appellant's contentions. He received all the procedural protections to which he was entitled. The final determination is supported by substantial evidence, and we are satisfied it should be affirmed. There is no merit to his contention that consecutive sanctions were not warranted. He was charged with two separate disciplinary offenses, and separate discipline for each was, thus, appropriate.

Affirmed.

(continued)

(continued)

5

A-2008-04T5

February 2, 2006