DARON TRENT 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NOT FOR PUBLICATION WITHOUT THE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

DARON TRENT,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________

March 27, 2014

 

Submitted March 17, 2014 Decided

 

Before Judges Parrillo and Harris.

 

On appeal from the New Jersey Department of Corrections.

 

Daron Trent, 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

Appellant Daron Trent, an inmate serving a four-year sentence for aggravated assault pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2., appeals from the February 28, 2013 New Jersey Department of Corrections' (the Department) "Disposition of Disciplinary Appeal," which found Trent guilty of committing prohibited act *.205, misuse of authorized medication. N.J.A.C. 10A:4-4.1(a)(*.205). We remand for further proceedings.

I.

On February 6, 2013, Trent was incarcerated at South Woods State Prison. According to Trent, that morning, because his prescription for Neurontin, a non-narcotic analgesic had expired, he went to the infirmary where he turned in his "med card" and unused pills to a registered nurse. Later that same day, around 1:00 p.m., Trent was called to the infirmary for a "KOP spot-check."1 A different nurse found that Trent was three Neurontin pills short, and reported the missing medication (and Trent's missing "pill cards") to a senior corrections officer, who issued a Disciplinary Report at 3:00 p.m.

A hearing was conducted two days later at which Trent explained why he did not have any pills and asserted that he had turned in his medication card earlier on February 6. Trent requested the right to confront the nurses he encountered on February 6 to demonstrate that he was not guilty of misusing an authorized medicine. The hearing officer, citing N.J.A.C. 10A:4-9.14(b)(7), denied Trent's request for confrontation and refused to produce any members of the prison's medical staff because they were not Department employees.

The hearing officer found Trent guilty of prohibited act *.205 because there was "[n]o evidence to support [that Trent] turned pills in." The spot-check nurse submitted a written statement indicating the nature of Trent's inability to properly account for the medication and medication cards. A corrections officer submitted a report to the hearing officer stating, "Medical does not have any record of Trent turning in his KOP medication earlier on 2/6/2013."

Trent filed an administrative appeal arguing mainly that "the hearing officer violated his right to due process when she denied his request for confrontation." The South Woods' associate administrator "upheld" the decision of the hearing officer, writing: "There is no violation of standards or misinterpretation of the facts." This appeal followed.

On appeal, Trent presents the following argument for our consideration:

POINT I: THE PETITIONER WAS DENIED HIS RIGHT TO DUE PROCESS AND FAIRNESS WHEN THE DISCIPLINARY HEARING OFFICER DENIED PETITIONER'S REQUEST FOR CONFRONTATION AND CROSS-EXAMINATION.

Because we conclude that the hearing officer mistakenly exercised her discretion and failed to honor Trent's limited due process rights, we remand for further proceedings.

II.

Prison discipline is not part of a criminal prosecution; accordingly, 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). Furthermore, "where an inmate seeks access to an eyewitness in a reasonable attempt to rebut the charge made against him, that effort must be indulged." Jones v. Dept. of Corr., 359 N.J. Super.70, 77 (App. Div. 2003).

N.J.A.C. 10A:4-9.14, upon which the Department relies, provides, in pertinent part, as follows:

(a) The opportunity for confrontation and cross-examination of the accuser(s) and/or the State's witness(es), if requested, shall be provided to the inmate or counsel substitute in such instances where the Disciplinary Hearing Officer or Adjustment Committee deems it necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved.

 

(b) The Disciplinary Hearing Officer or Adjustment Committee may refuse confrontation and cross-examination when confrontation and cross-examination is determined by the Disciplinary Hearing Officer or Adjustment Committee to be:

 

. . . .

 

7. A request to call a witness who is not employed or no longer employed by the Department of Corrections;

 

. . . .

 

or

 

9. A request to call an unavailable witness, as defined in this chapter.[2] An unavailable witness may be asked to submit a written statement answering cross-examination questions in lieu of an in-person appearance.

 

Although there are several reasons why confrontation may be denied, including safety concerns, potential for harassment, and confidentiality issues, see N.J.A.C. 10:4-9.14(b)(1), (4), and (6), the hearing officer and the Department rely solely on the "a witness who is not employed . . . by the Department of Corrections" rationale. N.J.A.C. 10:4-9.14(b)(7).

The administrative record strongly suggests that the nurse witnesses sought by Trent for confrontation, while arguably not Department employees, are likely employed by a State-contract vendor that provides regular medical services to inmates, are under the supervision of prison authorities, and are on site at the prison facility on a regular basis. We can think of no sound reason why such individuals, who may be in possession of relevant information that would shed light on Trent's conduct, should be automatically excluded from participating in the Department's search for truth. The likely minimal intrusion upon the prison's operations medical and otherwise if the nurses sought by Trent were subjected to confrontation are far out-weighed by the advantages to the disciplinary process. We believe that the hearing officer had it within her delegated powers, particularly in light of N.J.A.C. 10:9.14(b)(9)'s permission to have an unavailable witness submit a written statement answering cross-examination questions in lieu of an in-person appearance, to provide confrontation for Trent. One of the key questions in this matter is whether Trent did, or did not, return his medication card and unused medication to the medical facility before the spot check. Confrontation of the nurse who supposedly received the card and pills from Trent will erase all doubts about the fairness of the Department's adjudication process.

We remand this matter for reconsideration. The disciplinary hearing shall be reopened as soon as practicable, and the hearing officer shall provide Trent with the confrontation he requested. Then, the hearing officer shall reconsider the disciplinary charges in light of any additional information received. If, for some reason, confrontation is impossible, a full explanation shall be provided as to why, and the hearing officer shall consider the Department's inability to produce the witness or witnesses as part of the reconsideration analysis. We do not foretell the outcome of the reconsideration process.

Remanded for reconsideration in accordance with this opinion. We do not retain jurisdiction.

1 "KOP" refers to medication that inmates are permitted to "keep-on-person," subject to following directions to take the medication as directed.

2 "Unavailable witness" is a witness who is unable, for medical, leave or other valid reason, to attend the disciplinary hearing. N.J.A.C. 10:4-1.3.