October 17, 2007
TARIQ MURAD, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections, #207098.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Lisa and Simonelli.
Appellant, Tariq Murad, a New Jersey State Prison inmate, appeals from a final decision of the Department of Corrections adjudicating him guilty of committing prohibited act *.204, "use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff," see N.J.A.C. 10A:4-4.1(a), and imposing sanctions of fifteen days detention, 250 days loss of commutation credit, 250 days administrative segregation, permanent loss of contact visits, and 250 days urine monitoring.
THE FAULTY PROCEDURES EMPLOYED BY CUSTODY IN OBTAINING A URINE SAMPLE FROM APPELLANT FOR TESTING DEPRIVED HIM OF DUE PROCESS OF LAW, CONTRARY TO THE FOURTEENTH AMENDMENT.
THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR AND IMPARTIAL HEARING WHEN THE HEARING OFFICER RELIED ON HEARSAY EVIDENCE AND FAILED TO AUTHENTICATE THE LABORATORY REPORT.
We reject these arguments and affirm.
On November 27, 2006 at 5:10 p.m., a corrections officer found in a stairwell a bag containing a brownish-green substance believed to be marijuana. The officer reported this to Acting Director of Custody Operations, Joseph Ring. Ring issued a handwritten report on November 28, 2006 ordering that urine samples be taken of all inmates in the housing unit in close proximity to the stairwell where the substance was found. Appellant was one of those tested. Appellant's in-house test was positive for marijuana. His sample was then sent to the Department of Health laboratory for a confirmatory test. A report was issued reflecting that the sample tested positive for marijuana. That report constituted part of the evidence at appellant's disciplinary hearing.
Because this was an asterisk offense, appellant was provided counsel substitute. Appellant disputed the authenticity of Ring's handwritten order. The hearing officer sought clarification, which was provided by virtue of a typewritten memorandum from Ring to the hearing officer dated December 20, 2006, which stated: "Based upon operation reports (B163A, B163) submitted on 11/27/06 at approximately 5:10 PM this writer ordered that 4UP 7 & 8 Tier inmate population be administered an on site urine testing."
Throughout the investigation and at the hearing, appellant and his counsel substitute declined the opportunity to call witnesses on appellant's behalf or to confront and cross-examine adverse witnesses. Accordingly, the hearing proceeded on the documentary evidence. The hearing officer found the reports credible, adjudicated appellant guilty, and imposed the sanctions we have mentioned. Appellant filed an administrative appeal. On December 26, 2006, the Associate Administrator upheld the decision of the hearing officer. This appeal followed.
Defendant's contention that the taking of his urine sample deprived him of due process of law lacks merit. Testing for the presence of prohibited substances in inmates "may be conducted for the purpose of deterring and controlling the introduction of contraband" into prison facilities. N.J.A.C. 10A:3-5.10(a). Inmates may be tested "[w]hen the Administrator, Associate Administrator, Assistant Superintendent or the Director of Custody Operations orders all inmates of a particular housing unit, work detail or other functional unit to be tested." N.J.A.C. 10A:3-5.10(b)8. Ring's order that all inmates in appellant's housing unit be tested was authorized by these regulations.
Appellant's argument that Ring's initial handwritten order was a forgery and that Ring's clarifying typewritten memorandum constituted an after-the-fact falsification of evidence is baseless.
Also baseless is appellant's argument that he was deprived of his right to a fair and impartial hearing because the hearing officer relied on the Department of Health laboratory report. Appellant contends the report was hearsay and not properly authenticated because it did not describe the method of testing, the protocol to monitor for accuracy, or the qualifications of the analyst conducting the test. As we have stated, appellant and his counsel substitute declined the opportunity to require the production of the laboratory technician and the opportunity to confront and cross-examine that individual. The laboratory report was properly considered as a business record.
We will not interfere with an agency's decision unless it is arbitrary or capricious or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We have reviewed the record and we are satisfied that the reports relied upon by the hearing officer and the Associate Administrator provide the required "substantial" evidence to support the disciplinary violation against appellant. See McDonald v. Pinchak, 139 N.J. 188, 195 (1995); N.J.A.C. 10A:4-9.15(a); R. 2:11-3(e)(1)(D).
We are further satisfied from our review of the record that the disciplinary proceedings were conducted in accordance with all applicable due process requirements. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Appellant's argument that he was deprived of his due process rights lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
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