NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1220-08T31220-08T3
RAHGEAM JENKINS,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
________________________________________________________________
Submitted January 4, 2010 - Decided
Before Judges Axelrad, Fisher and Espinosa.
On appeal from the Department of Corrections.
Rahgeam Jenkins, appellant pro se.
Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.S.C. (temporarily assigned).
Rahgeam Jenkins, an inmate at New Jersey State Prison, appeals from the final decision of the Department of Corrections (DOC) finding him guilty of disciplinary infraction *.011, which is defined in N.J.A.C. 10A:4-4.1 as "possession or exhibition of anything related to a security threat group." He challenges the regulation as unconstitutionally vague and the sufficiency of the evidence against him. We affirm.
On September 23, 2008, three letters were seized during a search of Jenkins's cell. The investigator reported that Jenkins had occupied the cell where the material was seized since September 27, 2007. He concluded, "I/M is not permitted to possess STG [security threat group] related material, hazard to safety and security of institution[,]" and referred the matter to a hearing officer. Jenkins was placed in pre-hearing detention. The seized letters were referred to the Special Investigations Division (SID) for verification of STG related content. As a result, the hearing was postponed.
Jenkins entered a plea of not guilty and requested a counsel substitute, which was provided.
Three handwritten letters seized from Jenkins's cell were received in evidence at the hearing. Investigator S. Harrison, an Intelligence Investigator who has received training as a gang investigator, prepared an Evidence Review Form. According to Investigator Harrison, two of the letters that Jenkins had received from inmates at other institutions contained STG related material. No references were identified in a third letter.
A letter from an inmate at the Hudson County Correctional Center reads as follows:
Greetings Soldier;
Well i salute all warriors you shed blood sweat & tears with honor and respect. Well as you can see my hearts beating and that im in good hands. Im riding shotgun with Bevinobr so you know we dirty, ya heard. Well i don't know your whole situations and i don't know if i'm a be here long, but you can fly back a kite. As for me, well i just got sentenced by the feds to a 110 months for a gun possession and busting a niggas ass, also i got 2 and i go by the name of "Trig." If you would send me some street info where i can write and they will send you my mail & vice versa thatll be love. But if its anything more you need from me just holla ill hear it.
Knotsaka "Trig" aka
NJ Bravest Heart
P.S. If you have K.O.'s
SBI# please forward it
to me, so I could bark
at him. Trillz Also we
had got word that KBs
heart might have stop
beating, but we're not for
sure if hes playing the
murda game, but if so hes
definitely off of this line &
anyone else whose heart
stops beating.
[(Emphasis added).]
Investigator Harrison identified the following as references to the Bloods in this letter:
1. The author described the status/rank (2 star General) he holds in the STG Bloods along with his AKA/alias name (Trig).
2. The author uses the term/slang word "Trillz." This is a common word that's used among fellow STG Bloods Members.
The third letter was correspondence between Jenkins and an inmate at South Woods State Prison, which reads as follows:
Komrade
Greetings Brave Heart!
First & formost I will like to extend my love, respect & honor to you. I also hope this vine reaches you in the best of health. Furthermore im assure that your heart is as brave as its ever been! I know you may think its been a mintue since you last heard from me. Although I was at war wit the opposite team. Fortunately the war was win unanimously. I was found not guilty on all counts. So of course the kid is happy! Anyhow that was the situation that cause my delay to respond to you. So have you been up on ya current events. Like how one officer is taken the weight for everything? Or how about the three individuals that got into a shootout with the Feds where as one of the Feds got killed, and the individuals was in the process of robbing the bank? Well as you could tell im getting more intuned to worldly events. Although on the other hand, I would like to refresh your thoughts on a few things. You said I would have to come there in order to receive something of such substance. Anyhow im in need of some info. I would like to know if you could look into things or maybe you may have it yourself. I need for you to try to provide me with. The info on where in S.I. unless you have the info already. The info to get in touch wit KO. Im asking cause someone wit your prestige maybe able to provide me with that. Now as far as the vine you received without the stamp. The box where I was being held allows you to send three free letters a week. So thats what that be about. Other than that trust and believe I am my brothers keeper! Without further delay Im resting my pen. Stay Strong stay Brave! [obscured - illegible] bury stillmatic.
Truly Brave
014
Bevin30
PS
Ford is built tough!
Im just Hard Body! How about you?
[(Emphasis added).]
Investigator Harrison identified the following STG reference in this letter:
The author uses the Greeting "Brave Heart." This is common greeting among the STG Bloods (Valentine Blood set).
At the disciplinary hearing, Jenkins provided a statement, i.e., "I was just communicating. I feel that I did nothing wrong." His counsel substitute also provided a statement:
The population was never provided with any advance notice as to what constitutes a STG phrase, etc. How can guys be charged without knowing what a gang term is? There is nothing in handbook or memo from administrator.
Jenkins declined the opportunity to call witnesses or to confront or cross-examine adverse witnesses. Jenkins and his counsel substitute were afforded the opportunity to review the adjudication report and all evidence used by the hearing officer.
The hearing officer found Jenkins guilty of *.011, possessing or exhibiting anything related to a security threat group. Jenkins received a sanction of 15 days detention, 180 days administrative segregation and 180 days loss of commutation time. The reasons stated for the sanction were:
To deter any STG related activities.
The DOC has zero tolerance policy involving STG matters.
Jenkins filed an administrative appeal. The Assistant Superintendent, New Jersey State Prison, upheld the decision of the hearing officer. In this appeal, Jenkins raises the following issues:
POINT I
THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUSTAIN A FINDING OF GUILT.
POINT II
APPELLANT WAS NOT GIVEN PROPER NOTIFICATION OF THE RULES ALLEGED TO HAVE BEEN VIOLATED.
The thrust of Jenkins's appeal is that, without notice of the "specifically prohibited words or images relating to STG groups," the regulation is unconstitutionally vague because it fails to provide adequate notice to those individuals who are subject to it. See State v. Cameron, 100 N.J. 586, 591 (1985). To prevail on a facial vagueness challenge, the law must be shown to be impermissibly vague in all its applications. Id. at 594. When, however, the law is challenged as applied, it must be proven that the law is unclear in the context of the particular case. Ibid. Therefore, to succeed here, Jenkins must show that *.011 is impermissibly vague in all its applications or, that the law is too vague to provide fair warning that his conduct was prohibited. See Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957, 32 L. Ed.2d 584, 590 (1972). Factors to be considered in determining the required degree of clarity include the purpose of the regulation; the context in which it is challenged; the conduct that is prohibited; the nature of the punishment involved; and the potential impact of the regulation upon constitutionally protected activities. See Cameron, supra, 100 N.J. at 594. After careful consideration, we conclude that disciplinary infraction *.011, as defined in N.J.A.C. 10A:4-4.1, is neither facially vague nor unconstitutionally vague as applied. U.S. Const. amend. V; N.J. Const. art. I,