ROGER HELM 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NOT FOR PUBLICATION WITHOUT THE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

ROGER HELM,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

______________________________________

May 8, 2015

Submitted March 23, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the New Jersey Department of Corrections.

Roger Helm, 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

One of the rights forfeited by an inmate during a period of incarceration in a New Jersey State correctional facility is the right to operate a business and receive income from that business. Roger Helm is an artist specializing in sculptures, who has sold hundreds of his creations through third parties for many years. Helm is also an inmate in a New Jersey prison serving a life sentence for three murders he committed in 1984.

In this appeal, Helm challenges the final agency decision of the Department of Corrections (DOC) that he operated a business without approval by selling his sculptures and attempted to possess a tax refund generated from the sales of his artwork, also without approval. He also challenges the disciplinary sanctions imposed upon him for committing these prohibited acts. We have carefully considered Helm's arguments and affirm the DOC findings and sanctions.

The facts are uncontroverted. Helm was convicted in Arizona in 1984 for committing three murders and sentenced to life in prison. He was transferred to New Jersey in 2002, where he has remained. While he was incarcerated in Arizona, Helm began to create sculptures out of bread and glue. He shipped some of the sculptures directly to stores where they were sold.

After his transfer to New Jersey, Helm's attorneys in Arizona sold some of his sculptures for him, and apparently taxes were withheld on the resulting income. A United States Treasury check, representing a tax refund in the amount of $875, was mailed to Helm at the New Jersey State Prison where he is incarcerated.

The check was intercepted by prison authorities, and Helm was questioned by members of the prison's Special Investigations Division (SID) on July 8, 2013. In a recorded interview, Helm said the check was from the Internal Revenue Service (IRS) and represented "back taxes" from artwork that he "got rid of." He explained that he began creating sculptures in Arizona before his transfer to New Jersey and that two Arizona attorneys had prepared paperwork for the sales and the tax payments, which he signed. He estimated that he had sent "hundreds" of sculptures out for sale by his attorneys, his wife, and "a bunch of people." He denied that he was operating a business because he claimed that he did not directly receive the profits from the sales. However, he admitted that if he needed attorney services from the Arizona attorneys, they were paid from the revenue generated by the sales. Helm conceded that the tax refund was a "benefit."

Based on these admissions, Helm was charged with prohibited acts .705, commencing or operating a business or group for profit without the approval of the Administrator, and *.803/*.207, attempted possession of money or currency (in excess of $50.00) not specifically authorized. See N.J.A.C. 10A:4-4.1 (listing prohibited acts).

Helm pled not guilty to the charges and was initially scheduled for a disciplinary hearing on July 15, 2013. The hearing was postponed to give the hearing officer an opportunity to obtain the video interview with Helm. Helm was assigned counsel substitute, and the disciplinary hearing resumed on July 17, 2013. After the video was played, Helm maintained that his lawyer sold his artwork at a gallery. Helm presented three arguments: the artwork is in his name and he is entitled to the proceeds of the sale of the items; Miranda1 rights were not read to him before he was questioned; and Helm was not operating a business, his attorney was.

The hearing officer found Helm guilty of both charges. On the .705 charge, Helm was sanctioned to 15 days' detention, 60 days' loss of commutation time, 90 days' administrative segregation, and 90 days' loss of telephone privileges. On the *.803/*.207 charge, he was sanctioned 15 days' detention, 180 days' loss of commutation time, 180 days' administrative segregation, and 30 days' loss of recreational privileges. In addition, the tax refund check was confiscated.

Helm appealed, asserting that he never actually possessed the tax refund check and it was never deposited into his account; the disciplinary report prepared by SID did not specify when the violations took place; and he was not informed of his Miranda rights before the video. Helm's administrative appeal was denied and the findings of guilt and sanctions were upheld.

On appeal, Helm presents three points

point i

the decision of the disciplinary hearing officer must be reversed as the agency's decision is arbitrary, capricious or unreasonable and is not supported by substantial credible evidence in the record.

(a) .705 commencing or operating a business or group for profit or commencing or operating a nonprofit enterprise without the approval of the administrator.

(b) *.803/*.207 attempting possession of money or currency (in excess of $50.00) unless specifically authorized.

point ii

appellant was denied procedural due process when (a) the date of the alleged violation was described as "various" (b) when counsel substitute did not submit documentary evidence favorable to appellant; and (c) when he did not receive notice or timely hearing when he was deprived his property.

point iii

appellant was not read his Miranda warnings prior to custodial interrogation by investigator Amanda robbins.

Our review of a decision of an administrative agency is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We will reverse only if the decision is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Id. at 579-80. Having reviewed the entire record in light of that standard, we find sufficient credible evidence to support both charges and no basis to disturb the DOC's determination.

The sale of Helm's sculptures by his attorneys on his behalf generated income as defined by N.J.S.A. 54A:5-1, which includes net gains or income from disposition of personal property. N.J.S.A. 54A:5-1(c). Clearly, Helm's sculptures were sold and taxes were paid on the income, which ultimately generated the tax refund in question. The evidence is sufficient to support the finding that he attempted to possess those funds and that possession was not authorized.

Helm admitted that he had signed paperwork regarding the sale of the sculptures and the taxes to be paid from those sales. He also admitted that he received notice of the tax refund and expressed his desire to the investigators that the tax refund be deposited into his account. Helm conceded that the sale of his artwork was a business, but maintained that his attorney was conducting the business and he was not benefiting.

Whether Helm received a direct benefit from the sales is immaterial as .705 prohibits the operation of both for-profit and nonprofit businesses. The tax refund is clear proof that the sales generated income. Moreover, Helm conceded that he benefited, albeit indirectly, from those sales by receiving services from the two Arizona attorneys who were compensated from the income generated by the sales.

Helm complains that his counsel substitute failed to submit certain documents to the hearing officer and he did not receive timely notice or a hearing when the tax refund check was confiscated. As neither argument was presented to the hearing officer or in the administrative appeal, and the questions raised do not go to the jurisdiction of the agency or concern matters of great public interest, we decline to consider them here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

In any event, Helm's arguments lack merit. When the refund check was first received at the prison, there was understandably a suspicion of fraud, requiring further investigation. Indeed, the hearing officer noted that charges against Helm were delayed because of the necessity for SID to follow leads in this matter. Moreover, we have reviewed the documents Helm sought to introduce before the hearing officer and find nothing exculpatory. The documents include Helm's request for return of the tax refund check, a receipt for seizure of his art supplies, a request for the return of those items, and other related documents. Helm fails to demonstrate how these documents were "favorable" to him as he claims or how counsel substitute violated his due process rights when he failed to submit them to the hearing officer.

Helm's argument that he should have been given Miranda warnings before the SID interview also lacks merit. The Fifth Amendment requires that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. In Miranda, supra, the United States Supreme Court imposed safeguards to ensure an individual's right against self-incrimination when subject to custodial interrogation. 384 U.S. at 467-79, 86 S. Ct. at 1624-30, 16 L. Ed. 2d at 719-26. To protect such rights, the Court mandated that a person subject to a custodial interrogation "must be adequately and effectively apprised of his [Miranda] rights . . . ." Id. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719.

The investigators informed Helm at the beginning of the interview that they were contacted by the IRS because they were concerned that Helm might be the victim of identity theft in light of the refund check. The interview was conducted to determine why the refund check was sent to Helm and whether there was any fraudulent activity. Helm was not charged with a crime, and his responses in the SID interview were not used against him in a criminal proceeding. See United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S. Ct. 1056, 1060, 108 L. Ed. 2d 222, 232 (1990) ("The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants.").

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).