NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2021-14T1
VASIL W. HEISLER,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent.
_______________________________
Submitted January 10, 2017 – Decided August 3, 2017
Before Judges Messano and Espinosa.
On appeal from the New Jersey Department of Corrections.
Vasil W. Heisler, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).
PER CURIAM
Vasil Heisler, an inmate at New Jersey State Prison (NJSP),
appeals from the final administrative decision of the Department
of Corrections (DOC) that upheld a hearing officer's decision finding him guilty on two counts of prohibited act *.009, misuse
and possession of an electronic communication device, N.J.A.C.
10A:4-4.1(a)(1)(v); and one count of prohibited act *.803/*.306,
conspiracy to disrupt or interfere with the security or orderly
running of the correctional facility, N.J.A.C. 10A:4-
4.1(a)(1)(xiv), (2)(xxix); and imposed sanctions. Heisler's
charges resulted from a system-wide investigation by the NJSP's
Special Investigations Division (SID) to uncover a large-scale
conspiracy to smuggle contraband into prisons by inmates and
corrupt prison staff.
On April 8, 2014, the DOC issued two *.009 charges and a
*.306 charge against Heisler and placed him in prehearing detention
based on evidence from the SID investigation that he (1) placed
several calls to a family member from two cell phones seized from
two other inmates in April and July 2012, and (2) conspired with
other inmates and civilians to transfer money used to bribe a
sworn DOC officer.1 Heisler was served with the charges on April
9, 2014, and the matter was referred to a disciplinary hearing
officer.
The hearing officer modified the *.306 charge, converting it
1 Heisler was also charged with, but found not guilty of, prohibited act *.803/*.751, attempting to give or offer any official or staff member a bribe or anything of value.
2 A-2021-14T1 to *.803/*.306, a conspiracy charge. Heisler requested counsel
substitute, which was granted, and together they asked to review
the documentary evidence and twenty-four hours to prepare a
defense. To accommodate Heisler's request and to give the hearing
officer time to "review [and] prepare evidence," the hearing was
postponed to April 30, 2014.
The DOC identified a list of non-confidential materials it
relied on, including the call records of the two cell phones seized
and the subscriber information of a cell phone number linked to
Heisler's family member. In addition, the DOC provided a list of
confidential SID investigation reports, that were withheld because
they "contain[ed] info regarding an ongoing criminal
invest[igation]" and the DOC sought "[t]o avoid [and] deter
violence [and] retaliation." Instead, Heisler was provided with
"a concise summary of evidence" contained in the confidential
reports, including statements made by a confidential informant
(CI).
The disciplinary hearing resumed on April 30, 2014, where,
following a review of the evidence, the hearing officer found
Heisler guilty of both *.009 charges and the modified *.803/*.306
charge. Following Heisler's administrative appeal, the Associate
Administrator upheld the hearing officer's decision.
On appeal, Heisler argues the DOC's final decision should be
3 A-2021-14T1 reversed because his due process rights were violated, the decision
was unsupported by substantial credible evidence, and the
modification of prohibited act *.803 or *.803/*.306 was
extraneously excessive.
We preface our analysis by recognizing our review of the
DOC's decision is limited. Reversal is appropriate only when the
agency's decision is arbitrary, capricious or unreasonable, or
unsupported by substantial credible evidence in the record as a
whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980);
see also In re Taylor, 158 N.J. 644, 657 (1999) (a court must
uphold an agency's findings, even if it would have reached a
different result, so long as sufficient credible evidence in the
record exists to support the agency's conclusions). However,
"although the determination of an administrative agency is
entitled to deference, our appellate obligation requires more than
a perfunctory review." Figueroa v. N.J. Dep't of Corr., 414 N.J.
Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of
Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)).
I.
An incarcerated inmate is not entitled to the full panoply
of rights in a disciplinary proceeding as a defendant in a criminal
prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An
inmate is entitled to written notice of the charges at least
4 A-2021-14T1 twenty-four hours prior to the hearing; an impartial tribunal; a
limited right to call witnesses and present documentary evidence;
a limited right to confront and cross-examine adverse witnesses;
a right to a written statement of the evidence relied upon and the
reasons for the sanctions imposed; and, where the charges are
complex, the inmate is permitted the assistance of a counsel
substitute. Id. at 525-33. It is undisputed Heisler was afforded
these procedural safeguards.
Heisler argues the DOC violated N.J.A.C. 10A:4-9.2, which
requires the disciplinary report "be served upon the inmate within
48 hours after the violation unless there are exceptional
circumstances," because the disciplinary report was issued years
after the violations were uncovered. He also asserts that,
beginning on April 8, 2014, he was held in prehearing detention
for two weeks prior to his April 23, 2014 hearing in violation of
N.J.A.C. 10A:4-9.8(c), which mandates that inmates in prehearing
detention "receive a hearing within three calendar days of their
placement . . . unless there are exceptional circumstances,
unavoidable delays, or reasonable postponements."
We are satisfied the adjudication of violations uncovered
during a long-term, system-wide investigation into corrupt prison
practices qualifies as an exceptional circumstance. However, even
where there are no exceptional circumstances, a failure to comply
5 A-2021-14T1 with time limits set by inmate disciplinary regulations does not
mandate a dismissal of the charges. N.J.A.C. 10A:4-9.9(a). The
dismissal of charges rests within the discretion of the hearing
officer, with consideration given to the length and reason for the
delay, prejudice to the inmate's defense preparation, and the
seriousness of the violation charged. N.J.A.C. 10A:4-9.9(a)(1)-
(4).
Both of the prohibited acts charged are asterisk offenses,
which are "considered the most serious." N.J.A.C. 10A:4-4.1(a).
However, Heisler has not identified any prejudice he suffered in
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2021-14T1
VASIL W. HEISLER,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent.
_______________________________
Submitted January 10, 2017 – Decided August 3, 2017
Before Judges Messano and Espinosa.
On appeal from the New Jersey Department of Corrections.
Vasil W. Heisler, appellant pro se.
Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).
PER CURIAM
Vasil Heisler, an inmate at New Jersey State Prison (NJSP),
appeals from the final administrative decision of the Department
of Corrections (DOC) that upheld a hearing officer's decision finding him guilty on two counts of prohibited act *.009, misuse
and possession of an electronic communication device, N.J.A.C.
10A:4-4.1(a)(1)(v); and one count of prohibited act *.803/*.306,
conspiracy to disrupt or interfere with the security or orderly
running of the correctional facility, N.J.A.C. 10A:4-
4.1(a)(1)(xiv), (2)(xxix); and imposed sanctions. Heisler's
charges resulted from a system-wide investigation by the NJSP's
Special Investigations Division (SID) to uncover a large-scale
conspiracy to smuggle contraband into prisons by inmates and
corrupt prison staff.
On April 8, 2014, the DOC issued two *.009 charges and a
*.306 charge against Heisler and placed him in prehearing detention
based on evidence from the SID investigation that he (1) placed
several calls to a family member from two cell phones seized from
two other inmates in April and July 2012, and (2) conspired with
other inmates and civilians to transfer money used to bribe a
sworn DOC officer.1 Heisler was served with the charges on April
9, 2014, and the matter was referred to a disciplinary hearing
officer.
The hearing officer modified the *.306 charge, converting it
1 Heisler was also charged with, but found not guilty of, prohibited act *.803/*.751, attempting to give or offer any official or staff member a bribe or anything of value.
2 A-2021-14T1 to *.803/*.306, a conspiracy charge. Heisler requested counsel
substitute, which was granted, and together they asked to review
the documentary evidence and twenty-four hours to prepare a
defense. To accommodate Heisler's request and to give the hearing
officer time to "review [and] prepare evidence," the hearing was
postponed to April 30, 2014.
The DOC identified a list of non-confidential materials it
relied on, including the call records of the two cell phones seized
and the subscriber information of a cell phone number linked to
Heisler's family member. In addition, the DOC provided a list of
confidential SID investigation reports, that were withheld because
they "contain[ed] info regarding an ongoing criminal
invest[igation]" and the DOC sought "[t]o avoid [and] deter
violence [and] retaliation." Instead, Heisler was provided with
"a concise summary of evidence" contained in the confidential
reports, including statements made by a confidential informant
(CI).
The disciplinary hearing resumed on April 30, 2014, where,
following a review of the evidence, the hearing officer found
Heisler guilty of both *.009 charges and the modified *.803/*.306
charge. Following Heisler's administrative appeal, the Associate
Administrator upheld the hearing officer's decision.
On appeal, Heisler argues the DOC's final decision should be
3 A-2021-14T1 reversed because his due process rights were violated, the decision
was unsupported by substantial credible evidence, and the
modification of prohibited act *.803 or *.803/*.306 was
extraneously excessive.
We preface our analysis by recognizing our review of the
DOC's decision is limited. Reversal is appropriate only when the
agency's decision is arbitrary, capricious or unreasonable, or
unsupported by substantial credible evidence in the record as a
whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980);
see also In re Taylor, 158 N.J. 644, 657 (1999) (a court must
uphold an agency's findings, even if it would have reached a
different result, so long as sufficient credible evidence in the
record exists to support the agency's conclusions). However,
"although the determination of an administrative agency is
entitled to deference, our appellate obligation requires more than
a perfunctory review." Figueroa v. N.J. Dep't of Corr., 414 N.J.
Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of
Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)).
I.
An incarcerated inmate is not entitled to the full panoply
of rights in a disciplinary proceeding as a defendant in a criminal
prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An
inmate is entitled to written notice of the charges at least
4 A-2021-14T1 twenty-four hours prior to the hearing; an impartial tribunal; a
limited right to call witnesses and present documentary evidence;
a limited right to confront and cross-examine adverse witnesses;
a right to a written statement of the evidence relied upon and the
reasons for the sanctions imposed; and, where the charges are
complex, the inmate is permitted the assistance of a counsel
substitute. Id. at 525-33. It is undisputed Heisler was afforded
these procedural safeguards.
Heisler argues the DOC violated N.J.A.C. 10A:4-9.2, which
requires the disciplinary report "be served upon the inmate within
48 hours after the violation unless there are exceptional
circumstances," because the disciplinary report was issued years
after the violations were uncovered. He also asserts that,
beginning on April 8, 2014, he was held in prehearing detention
for two weeks prior to his April 23, 2014 hearing in violation of
N.J.A.C. 10A:4-9.8(c), which mandates that inmates in prehearing
detention "receive a hearing within three calendar days of their
placement . . . unless there are exceptional circumstances,
unavoidable delays, or reasonable postponements."
We are satisfied the adjudication of violations uncovered
during a long-term, system-wide investigation into corrupt prison
practices qualifies as an exceptional circumstance. However, even
where there are no exceptional circumstances, a failure to comply
5 A-2021-14T1 with time limits set by inmate disciplinary regulations does not
mandate a dismissal of the charges. N.J.A.C. 10A:4-9.9(a). The
dismissal of charges rests within the discretion of the hearing
officer, with consideration given to the length and reason for the
delay, prejudice to the inmate's defense preparation, and the
seriousness of the violation charged. N.J.A.C. 10A:4-9.9(a)(1)-
(4).
Both of the prohibited acts charged are asterisk offenses,
which are "considered the most serious." N.J.A.C. 10A:4-4.1(a).
However, Heisler has not identified any prejudice he suffered in
preparing a defense to these charges as a result of the delays.
The charges were delayed to prevent an adverse "impact or impede
any ongoing activities" relating to SID's corruption
investigation. The hearing was delayed because the "extensive
investigation by SID . . . produced an extensive amount of
evidence" that "created an excessive case load" for the hearing
officer as evinced by the lengthy, over-four-hundred-page
confidential record documenting SID's investigation. We are
satisfied that, under the circumstances, the stated reasons for
the delays are valid, the delays were not unreasonable and Heisler
suffered no prejudice.
Heisler also argues his due process rights were violated when
the DOC failed to provide him "photocopies of [all] documented
6 A-2021-14T1 evidence," namely the confidential records the hearing officer
relied on in adjudicating his guilt. However, Heisler was not
entitled to receive such confidential information. Where there
is a confidential record, the hearing officer is only required to
provide "[a] concise summary of the facts on which the hearing
officer concluded that the informant was creditable or his or her
information reliable" and "[t]he informant's statement (either in
writing or as reported) in language that is factual rather than a
conclusion, and based on the informant's personal knowledge of the
matters contained in such statement." N.J.A.C. 10A:4-9.15(b)(1).
Heisler was provided a "concise summary of evidence," the
sufficiency of which he does not challenge on appeal.
We are thus satisfied that Heisler received all due process
protections afforded to him.
II.
"A finding of guilt at a disciplinary hearing shall be based
upon substantial evidence that the inmate has committed a
prohibited act." N.J.A.C. 10A:4-9.15(a). "Substantial evidence"
is "such evidence as a reasonable mind might accept as adequate
to support a conclusion." Figueroa, supra, 414 N.J. Super. at 192
(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376
(1961)). In other words, it is "evidence furnishing a reasonable
basis for the agency's action." Ibid. (quoting McGowan v. N.J.
7 A-2021-14T1 State Parole Bd., 347 N.J. Super. 544, 562 (2002)). "Where there
is substantial evidence in the record to support more than one
regulatory conclusion, 'it is the agency's choice which governs.'"
In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.)
(quoting De Vitis v. N.J. Racing Comm'n., 202 N.J. Super. 484, 491
(App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied,
127 N.J. 323 (1990).
The call histories of the two confiscated cell phones show
that several calls were placed in March and April 2012 to a number
that belongs to a member of Heisler's family, as confirmed by
subscriber information from the cell phone provider, who was on
his list of approved visitors. Our review of the confidential
appendix corroborates the substance of the concise summary
provided to Heisler, i.e., the CI confirmed calls were made to a
Heisler family member from cellphones in NJSP and that Heisler
used third parties to exchange money that was used to bribe a
corrupt officer to smuggle contraband into the prison.
At the disciplinary hearing, Heisler provided no alternate
explanation for the outgoing calls to his family member, nor did
he show it was possible that the other two inmates could have
called his family member without him knowing. He also presented
no evidence to rebut the confidential informant's statements as
described in the concise summary provided to him. Because the
8 A-2021-14T1 charges against Heisler were supported by substantial credible
evidence, the determination that Heisler committed two counts of
prohibited act *.009 and one count of prohibited act *.803/*.306
was not arbitrary, capricious or unreasonable.
III.
Pursuant to N.J.A.C. 10A:4-9.16(a), a hearing officer is
required to modify a charge when "it becomes apparent at a
disciplinary hearing that an incorrect prohibited act is cited in
the disciplinary report but that the inmate may have committed
another prohibited act." When this happens, the inmate must "be
given the option of a 24-hour postponement to prepare his or her
defense against the new charge or have the new charge adjudicated
at that time." Ibid. Heisler's original charge of *.306, which
concerns "conduct which disrupts or interferes with" with the
function of the prison, N.J.A.C. 10A:4-4.1(a)(2)(xxix), was
modified to a charge of *.803/*.306, which instead concerns "making
plans to commit" such disruptive or interfering conduct, N.J.A.C.
10A:4-4.1(a)(1)(xiv). The hearing officer found the *.803/*.306
was the "more appropriate charge." Based on our review of the
record, we agree, and discern no abuse of discretion in the
modification.
Affirmed.
9 A-2021-14T1