On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and King.
This is an inmate's appeal from the Department of Corrections' (DOC) final determination adjudicating him guilty of permitting prohibited acts *.009, possessing a cell phone, and .702, unauthorized contacts with the public, and imposing disciplinary sanctions. Appellant argues he was denied due process by the hearing officer's unjustified postponing of courtline five times, purportedly to obtain and review the New Jersey State Police Special Investigations Division (SID) evidence, and then allowed him only several minutes to review the same evidence and prepare a defense. He also claims the hearing officer erred by finding guilt unsupported by substantial evidence, emphasizing that the cell phone was not in his possession but in the possession of another inmate and belonged to Loper's ex-cellmate, and that the SID failed to present evidence that Loper even knew the phone existed or that he had used the phone.
The number of postponements were justified by the ongoing investigation of other inmates which necessitated the delay. As the DOC points out, Loper's counsel substitute never raised any due process argument about the postponements at the initial hearing or on the subsequent administrative appeal and never claimed he had inadequate time to review the evidence or prepare a defense. He declined to call witnesses on his behalf or cross-examine adverse witnesses.
Under the circumstances the ten-day delay was not unreasonable because the charges arose out of a wide-ranging and ongoing SID investigation resulting in many inmates charged with disciplinary infractions. Moreover, appellant's failure earlier to raise the issue is an indication that he did not believe he was prejudiced by the delay and he demonstrates no real potential for prejudice from the delay.
In view of the SID investigation disclosing that the cell phone belonged to appellant Loper's former cellmate Gary Williams, that text messages were sent to Loper's ex-girlfriend with the final message received on July 17, 2007 when Williams and Loper were cellmates, that a text message was received on the phone from one of Loper's approved telephone numbers, that a voice mail message was left by a caller from another of Loper's approved telephone numbers, and that a voicemail message was left for "Antwine" from an unidentified caller, there clearly is substantial credible evidence in the record to support the charges. Though there is no direct evidence that Loper was using the phone or that the phone actually belonged to him, rather than his cellmate or former cellmate, there is enough circumstantial evidence to support the finding that he possessed the phone and had been making contact with the public.
The DOC's finding is supported by the record. Only where an agency's decision is arbitrary or capricious or unsupported by credible evidence may we reverse. Henry v. Rahway State Prison, 81 N.J. 581, 579 (1980). Unless a court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed. In re Taylor, 158 N.J. 644, 657 (1999); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
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