JOSEPH POST 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NOT FOR PUBLICATION WITHOUT THE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

JOSEPH POST,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

August 14, 2014

Submitted July 22, 2014 Decided

Before Judges Yannotti and Maven.

On appeal from the New Jersey Department of Corrections.

Joseph Post, appellant pro se.

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

PER CURIAM

Joseph Post, an inmate currently confined in New Jersey State Prison in Trenton (NJSP), appeals from the November 19, 2012 final decision of the Department of Corrections (Department), which found he had committed prohibited act *.803/*.203, attempting to commit, possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff; and two counts of *.704, perpetrating frauds, deceptions, confidence games, riots or escape plots, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

We derive the following facts from the record. Through an ongoing investigation conducted by the Special Investigations Division of the Department, Senior Investigator Dolce determined Post conspired with other inmates to develop and implement a plan involving narcotics trafficking and money laundering within NJSP. Post, who is not a veteran, improperly obtained passes to access a balcony area set aside for a veterans' group so he could confer with his co-conspirators, one of whom was intercepted using Post's telephone PIN to contact a member of Post's family. Moreover, Post was recorded discussing money laundering transactions with his mother, who provided money orders to a civilian to purchase narcotics.

On October 2, 2012, Post was charged with committing prohibited act *.803/*.203 and two counts of *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. The following day, he appeared before a hearing officer, who granted his request for the assistance of a counsel substitute. The hearing was postponed several times so the hearing officer could review and prepare a summary of the confidential reports on which the charges were based, and to accommodate Post's request for an opportunity to obtain statements of several witnesses and for confrontation of the complaining investigator. In addition, Post requested time to prepare a written summation.

On October 17, the hearing officer modified the two *.306 charges to *.704, the more appropriate charge of perpetrating frauds, deceptions, confidence games, riots or escape plots. The hearing was postponed to October 18. On that date, Post and his counsel substitute submitted oral and written arguments, in addition to witness statements and the results of the confrontation with the investigator. The hearing officer also had access to non-confidential and confidential information, copies of money orders, the veterans' group policy and roster, telephone recordings of Post and his mother, and a recording of the co-conspirator's telephone conversation with Post's family member.

The hearingofficer adjudicatedPost guiltyof thecharges and summarized her findings in writing. She imposed ten days of detention, 365days ofadministrativesegregation, 365days loss of commutationtime, zerotolerance, permanent loss of contact visit, and 365 days of urine monitoring for the *.803/*.203 charge.

For the first *.704 charge involving fraudulent veterans' group balcony passes, she imposed sanctions of ten days of detention with credit for time served, 365 days of administrative segregation, and 365 days loss of commutation time. For the second *.704 charge related to acts involving his mother, Post was sanctioned to ten days of detention with credit for time served,365 days of administrative segregation, 365 days loss of commutation time, and 365 days loss of phone privileges.

Following an administrative appeal, the assistant superintendent upheld the decision and sanctions imposed by the hearing officer. This appeal followed.

On appeal, Post presents numerous arguments, alleging that he was denied due process, the charges against him were not supported by substantial evidence, the decision was against the weight of the evidence, the charges were improperly amended at the beginning of the hearing, and he did not receive sufficient notice that some conduct was prohibited.

Our scope of review is limited, and Post's claim must be analyzed in accordance with that standard. In re Stallworth, 208 N.J. 182, 194 (2011); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The burden is on Post to demonstrate grounds for reversal. See Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). The Department must facilitate an informal hearing to ensure that disciplinary findings are based upon verified facts and the use of discretion is informed by accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that the Department's regulations for disciplinary hearings "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.

Our review of the record before us in light of the applicable law convinces us that Post's arguments are without merit. Although they do not warrant extensive discussion in a written opinion, Rule 2:11-3(e)(1)(E), we add the following comments.

Post received the level of due process required by Avant. He received written notice prior to the hearing at which the hearing officer amended the charges to correlate the alleged conduct with the proper offense designation. See N.J.A.C. 10A:4-9.16. Post was assigned a counsel substitute and given the opportunity to obtain witness statements and confront the investigator. The hearing officer summarized the confidential report. See N.J.A.C. 10A:4-9.15. The investigator provided sufficient information about the confidential informants, whose information was subsequently verified by the internal investigation. See ibid. Although there were delays in the holding of the hearing, they were justified and, in some cases, beneficial to Post because they allowed him to prepare his defense. Under the circumstances of the case, the length of Post's pre-hearing detention was not unreasonable. The hearing officer provided a written statement setting forth her reasons.

Because the constitution of the veterans' group clearly states that it is open to "any veteran of the military service," we find no merit in Post's claim that he was not on notice that he could not belong to the group. He was not a veteran and, consequently, not eligible for membership. He used the group's pass for the purpose of engaging in other improper conduct. He cannot reasonably have thought it was permissible to do so.

We are further convinced that the finding of guilt was not arbitrary or capricious, but was supported by substantial, credible evidence in the record. The sanctions imposed were not excessive.

Affirmed.