JOHN HAYNES 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NOT FOR PUBLICATION WITHOUT THE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-2351-12T1

JOHN HAYNES,

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.

John Haynes, appellant pro se.

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

PER CURIAM

John Haynes appeals from a final determination of the New Jersey Department of Corrections (NJDOC), which found that he committed certain prohibited acts while incarcerated at the New Jersey State Prison (NJSP), contrary to N.J.A.C. 10A:4-4.1(a). We affirm.

We briefly summarize the relevant facts, based on the record before us on appeal. The Special Investigations Division (SID) at NJSP conducted an investigation and determined that Haynes met with other inmates in the Trenton Incarcerated Veterans Program (TIVP) to organize and structure financial transactions so that narcotics could be obtained and smuggled into the prison.

The SID gathered information about Haynes' activities from confidential informants, interviews and recorded telephone conversations. The SID determined that Haynes and those with whom he was in league solicited monies, which were sent to a civilian known to Haynes. According to the SID, the monies were used to purchase illegal drugs, which were smuggled into the prison and sold by persons known to or associated with Haynes.

The SID's investigation revealed that Haynes had placed numerous calls to civilians, and engaged in discussions indicating that he was soliciting and structuring the acquisition of narcotics for distribution in the prison. Other persons joined the calls, and in these three-way conversations, Haynes was able to speak with persons whose identities were concealed. The SID learned that Haynes had also met with other inmates at various locations throughout the prison, including the NJSP balcony area and law library.

The SID determined that Haynes and his co-conspirators went to the balcony area where the TIVP had its meetings, but they had no legitimate purpose for being there in that location. Haynes was not a member of the TIVP. Haynes and his co-conspirators used their time in this area to engage in unmonitored communications, which allowed them to manipulate movements in the prison and to control access to the balcony area to conduct their activities. Haynes also used the inmate trust account system and civilian transactions to launder the profits of his sales of contraband.

Haynes was charged with the following prohibited acts: (1) *.803/*215, attempting or conspiring to possess with intent to distribute or sell prohibited substances such as drugs, intoxicants or related paraphernalia; (2) *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, which was modified to *.704, perpetrating a fraud by attending meetings of the TIVP; (3) *.306, which was modified to .701, unauthorized use of mail or telephone; and (4) *.704, perpetrating a fraud upon the NJDOC inmate-accounts system.

The charges were served upon Haynes on October 2, 2012, and thereafter investigated. The investigator found that the charges had merit. The charges were referred for a hearing, which took place on October 24, 2012. Haynes pled not guilty. He requested the assistance of counsel substitute, and the request was granted. The hearing officer found Haynes guilty of the charges.

The hearing officer imposed the following sanctions: for the *.803/*.215 charge, 365 days of administrative segregation and the loss of 365 days of commutation time; for the *.704 charge, 10 days of detention, 365 days of administrative segregation, and the loss of 365 days of commutation time; for the .701 charge, 10 days of detention, 90 days of administrative segregation, the loss of 60 days of commutation time and 365 days of telephone privileges; and for the second *.704 charge, 10 days of detention, 365 days of administrative segregation, and the loss of 365 days of commutation time.

On November 7, 2012, Haynes filed an administrative appeal. On December 3, 2012, Assistant Superintendent Lawrence upheld the hearing officer's decision. This appeal followed.

Haynes argues that there was insufficient evidence to support the NJDOC's findings. He contends, for a variety of reasons, that his constitutional rights were violated in the adjudication of the charges. We find no merit in these arguments and affirm the NJDOC's decision.

We note initially that the scope of our review in appeals from final decisions of administrative agencies is "severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

When reviewing a final decision of the Department imposing disciplinary sanctions upon an inmate, we consider whether there is substantial evidence to support the agency's finding and whether, in rendering its decision, the Department afforded the inmate the process due. McDonald v. Pinchak, 139 N.J. 188, 202-03 (1995); Jacobs v. Stephens, 139 N.J. 212, 222-23 (1995).

A. The *.803/*.215 Charge.

Haynes argues that his right to due process was violated when he was charged and sanctioned for committing prohibited act *.803/*.215. He contends that the charge of "attempted conspiracy" does not exist under the list of prohibited acts in N.J.A.C. 10A:4-4.1(a). This argument is entirely without merit.

Under the regulation, prohibited act *.215 is the possession of controlled substances with intent to distribute the same. Furthermore, prohibited act *.803 is defined as attempting to commit any asterisk offense, "aiding another person to commit any such act or making plans to commit such acts shall be considered the same as a commission of the act itself." Ibid. Thus, the regulation clearly placed Haynes on notice that the conduct for which he was sanctioned was prohibited.

Haynes also contends that the charge was not proven by sufficient evidence. We do not agree. Here, the hearing officer based her decision on, among other things, proof that Haynes had accessed the balcony area, recordings of Haynes' phone calls, confidential informant qualifications, a summary of the confidential SID report, and confidential informant statements.

In her decision, the hearing officer noted that the SID report revealed that monies had been sent to a person known to Haynes. The monies were sent to pay for the purchase of heroin, which was then smuggled into the prison and sold to persons known to or associated with Haynes. The identities of the aforementioned persons were made known to the hearing officer, but she would not disclose their names since this might place them into danger.

The hearing officer also noted that the investigation had revealed that Haynes had made various phone calls to civilians, and during those calls, made statements indicating he was soliciting and structuring the acquisition of narcotics. The SID had identified certain persons who were part of Haynes' effort to launder the money received in the narcotics transactions.

In addition, the hearing officer wrote that the SID determined that Haynes took steps to conceal his direct involvement in the aforementioned illegal activities. He met with inmates at various locations throughout the prison, and used those inmates to get information about persons who were cooperating with the SID's investigation. Haynes also used the meetings to transmit messages to others involved in the scheme.

According to the hearing officer, Haynes arranged to meet with these other inmates in the NJSP balcony area, as well as the prison's law library. The SID found that Haynes and others "manipulated or otherwise tampered with the process" which allowed inmates to go to the balcony area, when they had "no genuine purpose" to be there.

The hearing officer also wrote that the SID's investigation had identified various inmates housed at NJSP who sent monies to persons known or associated with Haynes. The SID found that some of these financial transactions had been initiated through the inmates' trust account system while others were initiated through persons associated with inmates. The funds were transmitted to a person known to or associated with Haynes, who laundered the monies and then transmitted them to a person known to Haynes. According to the SID, these transactions involved several thousand dollars.

The hearing officer noted that the SID had interviewed various persons confined in NJSP, who had obtained heroin and other narcotics and were instructed to send the money as directed. The SID also obtained information from several confidential informants whose reliability was made known to the hearing officer. The informants had provided information about Haynes' drug-trafficking in the NJSP, as well as the other inmates involved in the scheme. The confidential informants also provided information about the laundering of money obtained in the scheme.

Haynes argues that the charges were not properly adjudicated because he was not provided with evidence from the SID. The SID investigation was based in part on information obtained from confidential informants. The hearing officer provided Haynes with a concise summary of the pertinent facts of the report, and the reasons why the information provided by the confidential informants was creditable. See N.J.A.C. 10A:4-9.15(b). We are convinced that Haynes was not entitled to disclosure of the SID's confidential report and the charge was properly adjudicated.

B. *.704 Charge TIVP/Balcony Area.

Haynes argues that the *.704 charge, perpetrating a fraud or deception, should have been dismissed because it was not supported by substantial evidence. Haynes also argues that he was not afforded sufficient notice that he could be sanctioned for attending meetings of the veterans group in the prison's balcony area. We disagree.

Here, Haynes was charged with prohibited act *.704 because he attended meetings of members of the TIVP in the prison's balcony area. Haynes admits he went to the balcony area using a pass in order to meet with other inmates. In her decision, the hearing officer noted that membership in the TIVP is open to any veteran; however, Haynes' name was not on the TIVP roster.

The hearing officer found that Haynes manipulated the pass list to meet with the other inmates. We are convinced there is sufficient credible evidence in the record to support this determination. The evidence supports the finding that Haynes falsely held himself out as a member of the TIVP in order to gain access to the balcony area. He did not do so for any veterans-related purpose, but rather to meet with other inmates to plan prohibited and unlawful acts.

Haynes contends that he was not on notice that he was prohibited from meeting members of the TIVP and going to the balcony area for that purpose. He claims that he has been going to the balcony for fourteen years on TIVP passes and was never told such actions were prohibited.

However, the record supports the hearing officer's finding that Haynes went to the balcony area, not to receive assistance from the TIVP, but to meet other inmates who were identified in unlawful activities. The NJDOC did not act arbitrarily or capriciously in treating this as a prohibited fraud or deception.

C. The *.704 Charge Fraud on NJDOC's Inmate Accounts System.

Haynes argues that there is insufficient evidence to support the *.704 charge that he perpetrated a fraud on the NJDOC inmate-accounts system. Haynes contends that every transaction in his account came from family or friends. He says the SID never identified the transactions that were fraudulent. He asserts the fraud was not proven during the hearing. He also argues that he did not have notice as to the specific transactions that were prohibited. These arguments are entirely without merit.

As we have explained, the hearing officer summarized the evidence that was presented at the hearing. She stated that the SID's investigation revealed that numerous NJSP inmates had sent monies to a person known or associated with Haynes. Some of those transactions were made through the inmates' trust accounts, while others were initiated through persons associated with inmates. The funds then were transmitted to a person associated with Haynes, who forwarded the monies to a person known to Haynes.

The hearing officer pointed out that, in its investigation, the SID obtained banking records of persons known to or associated with Haynes. The SID also reviewed Haynes' financial transactions which included various money orders, some of which had been endorsed to Haynes and some of which had been endorsed to other persons. The SID found that Haynes had received money from persons who received laundered monies.

Although Haynes says that the transactions in his account were all with family members or friends, the SID's investigation provided ample support for the hearing officer's finding that Haynes perpetrated a fraud by his misuse of the NJDOC inmate accounts system. Furthermore, Haynes' contention that he was not on notice that such misuse of the system was prohibited is without sufficient merit to warrant comment. R. 2:11-3(e)(1)(E).

D. .701 Charge Misuse of Telephone.

Haynes further argues that the sanction for the .701 charge violates his right to due process because he was never on notice that three-way calls were prohibited.

Haynes maintains that the prison's phone system is supposed to automatically terminate any two-way or three-way calls. He says the calls are monitored and, if this alleged misuse had occurred, the calls would have been disconnected. Haynes asserts that if the system is flawed, this is not his concern.

Haynes' arguments are unavailing. The NJDOC's detailed dialing instructions prohibit inmates from making three-way telephone calls. Moreover, as noted, Haynes acknowledges that the NJDOC's phone system is supposed to disconnect three-way calls. Thus, Haynes was well aware that the three-way calls are prohibited.

Haynes also contends that the charge regarding the improper use of the phone should have been dismissed because it was not filed within seven days of the alleged prohibited act, as required by N.J.A.C. 10A:4-9.8(b). The regulations state that an inmate must be given a hearing on a disciplinary charge within seven days of the alleged violation, unless such a hearing cannot be held due to exceptional circumstances. Ibid. Here, the circumstances were exceptional because the investigation into Haynes' prohibited acts was ongoing.

E. Misuse of Confidential Informant.

Next, Haynes contends that his constitutional rights were violated because, during the hearing, his counsel substitute was a confidential informant who allegedly disclosed certain information to the SID.

In support of this contention, Haynes relies upon an affidavit of Joseph Post, another inmate who was involved in the drug distribution and money laundering scheme. In his affidavit, Post said that an inmate/paralegal was his counsel substitute (C.S.). He says that C.S. revealed certain confidential information to him regarding the SID's investigation, including the identity of a confidential informant.

Post states that C.S. told him that, if he cooperated, he "would get off easy and possibly get some favors." Post claims that C.S. was an informant, and he told C.S. he was going to "make it known" he was "working for" the prison authorities and the SID, and against the inmates. Post said C.S. was concerned that Post would expose him, and C.S. told him he would have the charges against him dismissed.

Haynes argues that his right to due process was violated because C.S. was his counsel substitute. He says that C.S. had a conflict of interest because he was "playing dual roles" as counsel substitute and "confidential informant" for the SID. Suffice it to say there is no evidence in the record, aside from Post's allegations, to support Haynes' argument that C.S. was a confidential informant for the SID.

Moreover, the record indicates that C.S. provided assistance to Haynes in the defense of the charges. There is nothing in the record to show that C.S. failed to assist Haynes defending against the charges. Haynes' arguments on this point are without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E).

Affirmed.