ORESTE HERRERA 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NOT FOR PUBLICATION WITHOUT THE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

ORESTE HERRERA,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_____________________________________

October 27, 2014

Submitted September 29, 2014 Decided

Before Judges Simonelli and Guadagno.

On appeal from the New Jersey Department of Corrections.

Oreste Herrera, 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

Oreste Herrera is an inmate currently confined at Northern State Prison. In 2013, Herrera was residing in a residential halfway house. On January 27, 2013, Herrera's room and a locker assigned to him were searched by Kadir Reeves, a counselor at the halfway house. During the search, Reeves found a rolled cigarette, later determined to contain synthetic cannabinoid, a Schedule I controlled dangerous substance. See N.J.S.A. 24:21-5(e). Herrera was charged with violating prohibited act *.203,1 possession or introduction of prohibited substances, specifically, drugs not prescribed by the medical staff. N.J.A.C. 10A:4-4.1(a).2

At a disciplinary hearing, Herrera pled not guilty and was provided counsel substitute. Herrera claimed his locker was locked, he did not possess the marijuana, and did not know how it got into his locker. The hearing officer found Herrera guilty of the charges and sanctioned him to 15 days detention, 365 days administrative segregation, 365 days loss of commutation time, 365 days of urine monitoring, and permanent loss of contact visits. Herrera filed an administrative appeal. The Administrator affirmed, but modified the sanction to 15 days detention, 180 days administrative segregation, 180 days loss of commutation time, 365 days urine monitoring, and permanent loss of contact visits.

In his appeal, Herrera contends that he received ineffective assistance from his assigned counsel substitute; the hearing officer failed to seek or inform him of the "option" of a polygraph test; and the hearing officer failed to call Reeves as a witness on her own authority. As a result, Herrera claims he was deprived of his right to due process. We have reviewed the briefs and record of the disciplinary proceedings and conclude that these contentions have no merit.

In Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S. Ct. 2963, 2978-79, 41 L. Ed. 2d 935, 955-56 (1974), the United States Supreme Court held that prison inmates must have the benefit of certain minimal due process protections when administrative sanctions are imposed for a violation of prison rules. These protections include advance written notice of the charge, a written statement of the evidence relied upon and the reasons for the sanctions imposed, and a limited right to call witnesses and present documentary evidence. Ibid. Federal constitutional rights of prisoners, however, do not include the right to counsel or to cross-examine witnesses. Id. at 567-70, 94 S. Ct. at 2980-81, 41 L. Ed. 2d at 957-59.

In Avant v. Clifford, 67 N.J. 496, 523-24 (1975), the Court noted that a prison disciplinary proceeding is not a criminal prosecution and does not require the same due process protections as in criminal courts. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 499 (1972). Nevertheless, the Court expanded the due process rights of New Jersey's inmates beyond the minimal federal constitutional rights required by Wolff, requiring: (1) written notice of the charges at least twenty-four hours before the hearing, (2) an impartial tribunal, which may be a superior officer from the central prison staff, (3) a limited right of the inmate to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses in appropriate cases, (5) a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) a limited right to the assistance of counsel substitute. Avant, supra, 67 N.J. at 525-37. Disciplinary action may be taken where the inmate's involvement in the infraction is supported by "substantial evidence." Id. at 530.

Herrera's ineffective assistance argument is based in his claim that his counsel substitute failed "to pursue any confrontation with the staff-witness or seek a polygraph[.]" Inmates charged with asterisk offenses have the "the right to request representation by a counsel substitute." N.J.A.C. 10A:4-9.12(a). Although this is not equivalent to the constitutional right to counsel, it is among the procedural safeguards to which inmates are entitled when subject to disciplinary procedures. Avant, supra, 67 N.J. at 537. Even if we were to hold that ineffective assistance of counsel substitute is a viable claim on an appeal of prison sanctions, the deficiencies alleged by Herrera would not be sufficient to set aside the administrative finding of his guilt.

The hearing officer indicated that Herrera was asked if he wished to call any witnesses at the hearing and he declined. There is also no indication that Herrera ever requested a polygraph. As neither of these issues were raised at the hearing, we will not consider them unless the questions raised on appeal go to the jurisdiction of the tribunal or concern matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). As Herrera has not satisfied either of these criteria, we decline to address his arguments. His contentions do not show a violation of his due process rights, and the decision issued by the DOC affirming the adjudication of Herrera's charges is supported by substantial evidence in the record.

Affirmed.

1 Department of Corrections inmate disciplinary regulations classify asterisk offenses as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1(a). See also Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).

2 Herrera was also charged with prohibited acts *.210, possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels, and *.257, violating a condition of any community release program, but he is not appealing the determinations on those charges.