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Kendricks v. Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 18, 2007

RONALD KENDRICKS, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 4, 2007

Before Judges Payne and Messano.

Ronald Kendricks appeals from a final administrative decision of the Department of Corrections (DOC) imposing sanctions against him for committing disciplinary infraction *203 -- 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 -- in violation of N.J.A.C. 10A:4-4.1. After consideration of the arguments raised in light of the record and applicable legal standards, we affirm.

On June 19, 2006, appellant was an inmate at Northern State Prison serving a fifty-year sentence for manslaughter, robbery, aggravated assault, and possession of a weapon. On that date, during a search of his cell, corrections officers found a clear plastic bag containing a white, powdery substance on top of a bin in a common area of the cell. Appellant and his cellmate were both charged with committing disciplinary infraction *203. At the time he was served with the violation, appellant stated that the substance the officer found was crushed chalk used in weightlifting.

Appellant was placed in administrative confinement pending the disciplinary adjudication hearing, which was adjourned a number of times while the authorities awaited the results of laboratory tests on the powder. Ultimately, the New Jersey State Police Laboratory confirmed the substance to be cocaine.

At the hearing, appellant was accompanied by counsel substitute as requested. The disciplinary adjudication report indicates appellant did not wish to call any witnesses, and, when asked if he wished to make a statement, replied, "[t]he stuff was found in my property." He also declined the opportunity to cross-examine or confront any of DOC's witnesses.

Citing the reports filed by the various officers who conducted the search and investigation, as well as the laboratory report, the hearing officer found appellant committed the disciplinary infraction and imposed various sanctions. His decision and sentence were upheld upon administrative appeal and this appeal then ensued.

Appellant raises a number of issues before us that he never raised below. He argues that he was inappropriately confined to administrative detention prior to the hearing and before DOC received the laboratory report confirming the substance was cocaine. He claims he was denied access to the laboratory report and denied an opportunity to independently test the substance. He further asserts his counsel substitute was ineffective in providing for a defense to the charge.

None of these allegations were raised below and therefore are not properly before us. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973). We only add that the record reflects appellant consented to the specific counsel substitute who represented him, was given the opportunity to examine the evidence marshaled against him, and waived any right to call witnesses on his behalf or confront those witnesses called by DOC. In short, our independent review of the record satisfies us that he was accorded all of the procedural due process requirements articulated by the Supreme Court in McDonald v. Pinchak, 139 N.J. 188 (1995), and Jacobs v. Stephens, 139 N.J. 212 (1995).

Appellant also argues that there was insufficient evidence to support the finding that he committed the disciplinary infraction. We disagree.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In Re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961) (quoting In Re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). DOC's regulations require any "finding of guilt at a disciplinary hearing [to] be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a).

In this case, cocaine was found on a bin near a footlocker in a common area of the cell accessible to both appellant and his cellmate. Appellant initially claimed the substance was crushed chalk used in his weightlifting activities, and, at the hearing, acknowledged the powder was found "in his property." The subsequent lab report demonstrated the powder was cocaine, a substance prohibited by regulation. In short, we conclude that DOC's decision that appellant committed a *203 infraction was supported by sufficient credible evidence.

Affirmed.

20070918

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