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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...