January 24, 2008
ELLIOT BATTLE, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Determination of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges Gilroy and Baxter.
This is an appeal from an April 30, 2007 final agency decision of the New Jersey Department of Corrections (Corrections) imposing disciplinary sanctions upon Adult Diagnostic and Treatment Center inmate Elliot Battle pursuant to N.J.A.C. 10A:4-4.1(a). A hearing officer found Battle guilty of committing prohibited act *.551, making an alcoholic beverage. Corrections imposed a sanction of an aggregate total of fifteen days of detention, ninety days loss of commutation time, ninety days in administrative segregation, and permanent loss of contact visits.
On appeal, Battle raises the following claims: (1) the charge leveled against him was not supported by substantial evidence in the record, and the guilty finding was therefore error; (2) Corrections disposed of the alleged homemade alcohol without affording him the opportunity to test it and thereby prove his innocence; and (3) the procedures used by Corrections violated his Eighth Amendment right to be protected from cruel and unusual punishment. We affirm.
As to Battle's first claim, our scope of review is a narrow one, and his contentions are reviewed in accordance with that standard. We must affirm unless the agency's decision was arbitrary, unreasonable, unsupported by credible evidence in the record or contrary to law. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
Here, contrary to Battle's arguments, we are satisfied that the finding that he made an alcoholic beverage is supported by substantial credible evidence in the record. The pitcher of brownish liquid found in Battle's cell was taken to the Special Investigations Unit. There, it was examined by Senior Investigator Caprice Chavers who, in her sixteen years in the Corrections setting, has "come across 'hooch' on many occasions," and consequently is experienced in detecting its distinctive characteristics. Based on the liquid's pungent and unusual odor, as well as the residue and clumps that she observed, Chavers was able to determine that the liquid in question was homemade alcohol. Battle admitted to Sergeant N. Mota that the liquid was his. We have been presented with no meritorious basis upon which to disturb Corrections' conclusion that Battle was guilty of making alcohol.
Battle next argues that Corrections unlawfully disposed of the liquid without submitting it for laboratory testing. The Administrative Code does not require Corrections to forward all substances believed to be alcohol to a laboratory for chemical analysis. Instead, N.J.A.C. 10A:3-6.5(b) permits, but does not require, such testing. Thus, in light of Chavers's unrefuted findings, and the discretionary nature of N.J.A.C. 10A:3-6.5(b), we disagree with Battle's argument that Corrections acted improperly when it did not submit the liquid for laboratory analysis.
Finally, we reject Battle's contention that the hearing procedures used by Corrections violated his constitutional rights to due process of law and to protection from cruel and unusual punishment. Battle received all the process he is due under law. See McDonald v. Pinchak, 139 N.J. 188, 202-03 (1995); Jacobs v. Stephens, 139 N.J. 212, 225-27 (1995); Avant v. Clifford, 67 N.J. 496, 529 (1975). He received twenty-four hours notice of the charge prior to the hearing, the hearing was timely, it was conducted by a member of the agency hearing officer staff, counsel substitute was assigned, counsel substitute made a statement on Battle's behalf, and Battle called two witnesses.
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