SHAUN D. SHAW, Appellant, v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1927-06T31927-06T3

SHAUN D. SHAW,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

__________________________________

 

Argued September 17, 2007 - Decided

Before Judges Lintner, Graves and Sabatino.

On appeal from the Final Agency Decision of the Department of Corrections.

Michael E. Gogal argued the cause for appellant (McCusker, Anselmi, Rosen, Carvelli & Walsh, attorneys; Mr. Gogal, on the brief.

Susan M. Scott, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Sean M. Gorman, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Shaun D. Shaw is a state prisoner. Shaw appeals a final decision of the Department of Corrections disciplining him for possessing in his prison cell two letters containing numerous references to a Security Threat Group ("STG"), in violation of *.011, an asterisked offense under N.J.A.C. 10A:4-4.1. We affirm.

The underlying facts that emerged at Shaw's disciplinary hearing are essentially undisputed. During a routine inspection of Shaw's cell at the Garden State Youth Correctional Facility on September 18, 2006, corrections officers discovered two handwritten letters and accompanying envelopes. The letters, respectively dated August 21 and September 13, 2006, were written to Shaw by his brother, who is an inmate at the Essex County Jail. The letters were confiscated because they appeared to contain several instances of gang terminology, including references to, or terms associated with, the Crips gang. The letters were presented to the Special Investigations Division of the Department, and they were analyzed for their content by Senior Investigator Brian Bonomo of that unit.

Investigator Bonomo, who has been specially trained and dealing with gang-related matters for more than five years, concluded that the letters found in Shaw's cell did in fact contain numerous gang references. In particular, the investigator noted:

The confiscated material is related to the Security Threat Group (STG) "Crips." The term[s] "C"ing["] and "cit, cat, cooling" [in the letters] are terms commonly used by "Crip" members to show their affiliation to the gang. The colors blue and gray [also referred to in the letters] are known "Crip" colors that are associated with the gang. [The phrase] "C's up" [in the letters] also show[s] a person['s] affiliation to the "Crips" by referencing the letter "C" for "Crip."

Consequently, the investigator concluded that the seized material was STG-related.

Shaw was charged with violating *.011, which prohibits the "possession or exhibition of anything related to a Security Threat Group." Around the same time, Shaw was separately charged with violating disciplinary provision .402, for being present in an unauthorized area. He was served with these charges, and appeared with a designated counsel-substitute for an administrative hearing on September 20, 2006.

The Department presented at Shaw's administrative hearing the reports of the investigating officers, including the STG analysis of the letters that had been conducted by Special Investigator Bonomo. Shaw declined the opportunity to confront the Department's witnesses, or to call witnesses of his own. He chose not to testify himself, offering no explanation whatsoever about why he had kept the letters or about his understanding of the gang references within them.

Shaw was found guilty of both the *.011 and the .402 infraction. As discipline for the *.011 STG offense, Shaw sustained a loss of thirty days of recreation privileges. For the .402 offense, which is not challenged on the present appeal, Shaw received more severe sanctions, specifically 180 days in segregated housing, thirty days in "lock up" and his removal from an institutional program known as "Focus on the Victim."

Shaw filed an administrative appeal of his discipline, which was denied by the Department's associate administrator on September 25, 2006. The administrator determined that the violations were established by substantial credible evidence, and that the sanctions imposed were proportionate to the nature of the offenses and Shaw's disciplinary history.

Shaw appeals to this court solely the *.011 violation. He argues that the letters confiscated from his cell were not STG materials. Rather, he contends that they simply amounted to benign "familial communications" from his brother recounting the conditions at a different penal facility, and were not designed to promote gang activity or to recruit Shaw into a gang.

Our scope of review of prison disciplinary matters is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We must affirm the Department's final decisions in this domain, so long as they are supported by substantial credible evidence and are not arbitrary or capricious. Id. at 580.

Applying that deferential standard of review here, we are satisfied that the Department's administrative findings of a *.011 violation are supported by substantial credible evidence in the record. The letters were unquestionably found in Shaw's cell, and he does not disavow possessing them. The report of Special Investigator Bonomo, who has documented expertise in gang matters, provides numerous illustrations to support his conclusion that the letters contain prohibited STG references. Such expert proof comports with the requirements of our case law. See Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003). We also reject Shaw's argument that he is somehow not responsible for possessing the letters because they should have been intercepted by prison authorities when they were in transit.

Although Shaw now argues that the letters are simply the equivalent of day-in-the-life accounts from his incarcerated brother, and that he is not himself a gang member who would recognize the significance of the gang vernacular in the letters, he offered no such explanations at his hearing. The record simply does not support Shaw's present competing contentions, which were not raised below and which are not properly before us on appeal, that the letters are innocuous. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). Indeed, the context of the letters, which have been supplied to us with the record, indicates that Shaw would be personally familiar with the significance of the gang words within them. For example, we note the repetitive use of the letter "C," as in "Crips," and the brother's plans upon his release to visit Shaw so that they could "cit, cat, cool together." One of the letters describes a violent fight between rival gangs in the Essex County Jail, replete with gang terms that suggest that Shaw would understand what they meant. Although the letters cover other subjects in addition to gangs, they are not manifestly innocuous.

We likewise reject Shaw's claim that the Department imposed discipline upon him in an arbitrary and capricious manner. The record shows that Shaw was afforded all of the limited procedural due process to which he is entitled within the confines of a penal institution. See Avant v. Clifford, 67 N.J. 496, 522 (1975); see also McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995). Shaw's counsel contends that his client has some cognitive difficulties, but no such limitations were presented to or documented before the prison hearing officer. The hearing officer had the opportunity to speak to and observe Shaw, and the officer noted no problems in his administrative decision with Shaw's perceived ability to understand what was going on at the hearing.

Additionally, we reject Shaw's contention that the punishment of thirty days lost privileges was excessive. The sanction for the *.011 infraction was reasonable, and modest in comparison to the more stringent sanction that was meted out for the unappealed .402 violation.

Affirmed.

 

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A-1927-06T3

September 27, 2007