June 10, 2008
TROY SPARKS, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2008
Before Judges Stern and A. A. Rodríguez.
Inmate Troy Sparks appeals from an adjudication that he committed a disciplinary infraction: possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by medical or dental staff, contrary to N.J.A.C. 10A:4-4.1(a)(*.203). Hearing Officer Kathy Ireland sustained the charge and imposed the following sanction: 15 days detention, loss of 180 days of credits, 180 days of administrative segregation and 90 days of urine monitoring. Appellant filed an administrative appeal. Assistant Superintendent John Powell upheld the finding of guilt, but modified the sanction by reducing administrative segregation to 120 days. The rest of the sanction was affirmed. This constitutes a final administrative determination by the Department of Corrections (DOC).
These are the undisputed facts. At 8:00 a.m. on June 25, 2007, Senior Corrections Officer Osborne saw inmate Tommy Davis pass a rolled paper towel to appellant. Osborne frisked appellant and found in the palm of his hand, a rolled paper towel containing three Vicodin pills. Neither inmate had been prescribed Vicodin. Appellant was immediately placed in Pre-hearing Detention. Davis was also disciplined, however, his charges are not the subject of this appeal.
The next day, Sergeant T. Mack delivered to appellant this charge for prohibited act *.203 and advised him of his use immunity rights. Sergeant Mack immediately conducted an investigation of the incident. Appellant stated that "[h]e (Davis) grabbed me in the stairway, I thought he was hugging me, the officer seen him give me the pills. I'm guilty, I had the pills." Appellant did not request any witnesses. Sergeant Mack concluded that the observations of staff were sufficient to forward the charge for adjudication.
A hearing was scheduled by Disciplinary Hearing Officer Zane Maguire, but it was postponed in order to obtain a mental health report. A second hearing was postponed in order to get a statement from inmate Davis. On the third scheduled date, Ireland conducted the disciplinary hearing. Appellant requested and was granted a counsel substitute.
Appellant pled not guilty. He was offered and declined the opportunity to confront witnesses. Appellant testified that Davis grabbed him and put the pills in his hand. He did not know what the pills were. Appellant thought Davis wanted to pass a note. After reviewing the evidence, Ireland concluded that there was substantial credible evidence to find appellant guilty of prohibited act *.203.
Appellant contends that the DOC "violated his due process rights as well as failed to adhere to rules and regulations governing the disciplinary hearing process." Defendant also contends that there was insufficient evidence to sustain the disciplinary infraction and that the case must be remanded to the DOC so as to "ensure that the principles of fundamental fairness are rendered by [the] hearing officer."
Appellant asserts that Inmate Davis "appeared before hearing officer Ireland [and] became clean and admitted to her that inmate Sparks had nothing to do with this incident." Appellant also asserts that the matter should not have been heard by Ireland, but by the hearing officer before whom he originally appeared. Appellant asserts that before hearing officer Maguire, Davis took "full and complete responsibility for the entire incident" and said that "appellant had nothing to do with anything."
We reject these contentions. With respect to the allegation of insufficiency of the evidence, we note our disagreement. The evidence presented is sufficient to establish circumstantially that appellant accepted the Vicodin pills willingly and with knowledge of their nature. Moreover, when error in a factfinding of an administrative agency is alleged, the scope of our review is limited. We will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. In re Taylor, 158 N.J. 644, 657 (1999). We give "due regard" to the ability of the factfinder to judge credibility. Id. at 659. In this context, we note that even undisputed testimony can be rejected by the factfinder. See State v. Smith, 262 N.J. Super. 487, 513 (App. Div.), certif. denied, 134 N.J. 476 (1993). In short, we conclude that there was sufficient evidence to support the adjudication. R. 2:11-3(e)(1)(D).
As for the due process denial allegation, we also disagree. Our review has also included examination of the process and procedures afforded appellant by the DOC to contest the charges and to present his defense. We conclude that these procedures insured an appropriate level of rights generally accorded to prison inmates as determined by law. McDonald v. Pinchak, 139 N.J. 188, 195-99 (1995).
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