ANTHONY KIDD v. NEW JERSEY DEPARTMENT OF CORRECTIONS (2014)

Appellant Anthony Kidd appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC), which affirmed the decision of a hearing officer finding Kidd guilty of, and imposing disciplinary sanctions for, the following prohibited acts under N.J.A.C. 10A:4–4.1(a):

*.001:  killing;

*.006:  extortion, blackmail, protection:  demanding or receiving favors, money or anything of value in return for protection against others, to avoid bodily harm, or under threat of informing;

*.009:  misuse, possession, distribution sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention;

*.010:  participating in an activity(ies) related to a security threat group;

*.202:  possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool;

*.215:  possession with intent to distribute or sell prohibited substances such as drugs, intoxicants or related paraphernalia (twenty-two counts);

*.306:  conduct which disrupts or interferes with the security or orderly running of the correctional facility;

*.802/*.752:  attempt to give money or anything of value to, or accepting money or anything of value from, another inmate;

*803/*.001:  attempted killing;

*.803/*.203:  attempted 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

*.803/*.215:  attempted possession with intent to distribute or sell prohibited substances such as drugs, intoxicants or related paraphernalia.

We affirm.

Kidd is serving a fifty-two-year term of imprisonment with thirty years and six months of parole ineligibility for convictions for distribution of a controlled dangerous substance (CDS), aggravated assault, resisting arrest, eluding, and weapons possession.   He is presently incarcerated at New Jersey State Prison (NJSP).

In 2006, the DOC's Special Investigations Division (SID), Mercer County Prosecutor's Office, and City of Trenton Police Department began a five-year investigation of Kidd. Evidence the SID obtained from Kidd's recorded telephone conversations, other recorded telephone intercepts, confidential informants, and financial instruments, revealed that while incarcerated at Northern State Prison, Kidd used a smuggled cellphone to order the murder of his girlfriend in retaliation for testifying against him.   The evidence also revealed that while incarcerated at NJSP, Kidd engaged in prison gang activity, controlled a large-scale narcotics operation and criminal enterprise that conspired with inmates and civilians to obtain and smuggle narcotics into NJSP for distribution to the inmate population, threatened inmates and civilians over drugs, and ordered the stabbing of an inmate over drugs.¹  The conspiracy involved bribery of a corrections officer to facilitate the smuggling operation.

Following the completion of the investigation, on May 10, 2011, the SID issued a comprehensive confidential report.   On June 30, 2011, the DOC served Kidd with the disciplinary report for each charge.   Hearings on each charge occurred thereafter over several non-consecutive days from July 5 to October 11, 2011.   Kidd pled not guilty, requested and received counsel substitute, declined to make a written statement, confront adverse witnesses, or present witnesses on his behalf, and requested leniency.   Kidd was provided with copies of video-taped interviews of confidential informants and recorded telephone intercepts, as well as a concise summary of all confidential information.   He was also offered, but declined, the opportunity to listen to his recorded telephone conversations.

After reviewing the voluminous evidence the DOC presented, the hearing officer found Kidd guilty of the above-mentioned charges and, in accordance with N.J.A.C. 10A:4–9.15, issued a concise summary of the facts on each charge.   Based on the serious nature of the charges, the hearing officer imposed the following sanctions:  30 days of detention;  15 years of administrative segregation;  15 years of loss of commutation time;  and 10 years and 6 months of loss of phone privileges and contact visits.

On October 13, 2011, Kidd administratively appealed the decision.   On November 16, 2011, the Assistant Superintendent issued a final decision affirming the hearing officer's decision.

On appeal, Kidd raises the following contentions:

POINT I ALL CHARGES SHOULD BE DISMISSED DUE TO THE [DOC'S] FAILURE TO ADHERE TO TIME LIMITS PRESCRIBED UNDER [N.J.A.C.] 10A:4–9.9.

POINT II THE HEARING OFFICER FLAGRANTLY MISINTERPRETED THE FACTS AND FAILED TO GIVE JUDICIAL DISMISSAL OF THE SAME CHARGES AGAINST APPELLANT CONTROLLING WEIGHT.   THE EVIDENCE SUPPORTING THE DISCIPLINARY CHARGES WAS INSUFFICIENT TO CONSTITUTE [A SUBSTANTIAL] GUILTY FINDING.

POINT III THE SANCTIONS IMPOSED UPON APPELLANT BY THE HEARING OFFICER WERE MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

“[We] have ‘a limited role’ in the review of [agency] decisions.”  In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).  “[A] ‘strong presumption of reasonableness attaches to [an agency decision].’ ”  In re Carroll, 339 N.J.Super. 429, 437 (App.Div.) (quoting In re Vey, 272 N.J.Super. 199, 205 (App.Div.1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001).   We reverse an agency's decision only where it is arbitrary, capricious, unreasonable or unsupported by credible evidence in the record.  Henry, supra, 81 N.J. at 579–80;  Ramirez v. Dep't of Corr., 382 N.J.Super. 18, 23 (App.Div.2005).   An adjudication of guilt of a charge against an inmate must be supported by “substantial evidence.”  N.J.A.C. 10A:4–9.15(a).   “ ‘Substantial evidence’ means ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ ”  Figueroa v. N.J. Dep't of Corr., 414 N.J.Super. 186, 192 (App.Div.2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).   The term has also been defined as “evidence furnishing a reasonable basis for the agency's action.”  McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 562 (App.Div.2002).   Applying these standards, we discern no reason to disturb the DOC's decision.

The DOC is required to serve the disciplinary report on the inmate “within 48 hours after the violation unless there are exceptional circumstances.”   N.J.A.C. 10A:4–9.2. Exceptional circumstances existed here because this case involved a long-term confidential investigation into Kidd's activities.   The DOC could not disclose the results of the confidential investigation until after the SID issued its report in May 2011.   Nonetheless, even if the DOC violated the time period in N.J.A.C. 10A:4–9.2, which it did not, dismissal of the charges against Kidd was not mandated.   See N.J.A.C. 10A:4–9.9(a) ( “[t]he failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge”).   In addition, Kidd suffered no prejudice by any purported delay in serving the disciplinary reports.   Despite the alleged delay, he had more than ample time to prepare for the hearings that took place after the DOC served him.

Dismissal of the criminal charges brought against Kidd in July 2010 did not preclude prison disciplinary prosecutions for the same infractions.   Prison disciplinary proceedings have never been treated as part of the criminal process.  Russo v. N.J. Dep't of Corr., 324 N.J.Super. 576, 583 (App.Div.1999).   As we have held,

A criminal prosecution is a judicial proceeding that vindicates the community's interests in punishing criminal conduct.   In contrast, the prison disciplinary process determines whether an inmate has violated the conditions of his incarceration and it is designed to advance the remedial goal of maintaining institutional order and security.   While punitive and remedial interests are tightly intertwined in the prison setting, disciplinary sanctions do not constitute additional punishment.

[Ibid. (citations omitted).]

The sanctions imposed were not excessive.   An inmate found guilty of an asterisk offense is subject to sanctions of up to 15 days of detention, 30 days loss of privileges, 365 days of administrative segregation, and 365 days loss of commutation time for each offense.  N.J.A.C. 10A:4–5.1(a).   Kidd was found guilty of numerous asterisk offenses.   The sanctions imposed comport with N.J.A.C. 10A:4–5.1(a) and were not excessive.

Finally, we are satisfied there was ample credible evidence in the record as a whole supporting the hearing officer's and DOC's decisions.   R. 2:11–3(e)(1)(D).  We conclude that Kidd's arguments to the contrary lack sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).

Affirmed.

FOOTNOTES

FN1. Defendant subsequently pled guilty to aggravated manslaughter, N.J.S.A. 2C:11–4a(1) in connection with his girlfriend's death;  conspiracy to assault an inmate, N.J.S.A. 2C:5–1;  and leader of narcotics trafficking network, N.J.S.A. 2C:35–3.   See Offender Search State of New Jersey Department of Corrections, https://www6.state.nj.us/DOC Inmate/inmatefinder?i=I (click “Accept”;  then enter “000682017B” in the “SBI Number” field;  then click “Submit”;  then follow “000682017B” hyperlink)..  FN1. Defendant subsequently pled guilty to aggravated manslaughter, N.J.S.A. 2C:11–4a(1) in connection with his girlfriend's death;  conspiracy to assault an inmate, N.J.S.A. 2C:5–1;  and leader of narcotics trafficking network, N.J.S.A. 2C:35–3.   See Offender Search State of New Jersey Department of Corrections, https://www6.state.nj.us/DOC Inmate/inmatefinder?i=I (click “Accept”;  then enter “000682017B” in the “SBI Number” field;  then click “Submit”;  then follow “000682017B” hyperlink).

PER CURIAM