July 9, 2008
JAMIL THOMPSON, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2008
Before Judges Sapp-Peterson and Newman.
This is a prison disciplinary appeal. Jamil Thompson, an inmate currently confined at New Jersey State Prison in Trenton, appeals a final determination of the Department of Corrections (DOC) finding him guilty of two drug-related disciplinary infractions. We affirm.
On March 4, 2007, Thompson was an inmate at Riverfront State Prison. On March 1, 2007, a confidential informant alerted prison officials that Nadia N. Odom, Thompson's girlfriend, would be visiting Thompson that day for a contact visit and would be bringing drugs into the prison. Odom was stopped shortly after she arrived at the institution and advised that she would be searched. When asked about a bulge beneath her shirt, Odom removed a clear plastic bag containing nine balloons of marijuana. On March 9, 2007, Thompson was charged with disciplinary infraction *.803, attempting to commit an asterisk offense, introduction of prohibited substances, *.203.*fn1
This disciplinary charge includes aiding another to commit any such act or making plans to commit such acts. On March 16, 2007, Thompson was also charged with a separate *.203 disciplinary infraction stemming from a January 30, 2007 incident during which suspected narcotics fell out of Thompson's rectal area while a correction officer strip searched Thompson as a result of an informant's tip that Thompson possessed a shank.*fn2 There was an initial hearing in which the charges against Thompson were sustained. After Thompson filed his appeal of the final administrative agency decision, DOC sought and was granted a remand to clarify the record. A rehearing was conducted and Thompson was once again found to have committed the infractions. The present appeal followed.
On appeal Thompson raises the following points for our consideration:
DEPARTMENT OF CORRECTION[S] VIOLATED APPELLANT[']S RIGHTS AND PRIVILEGES ANNOUNCED THROUGHOUT THE DISCIPLINARY PROCEEDINGS IN DETERMINING APPELLANT[']S GUILT AND DOING SO VIOLATED APPELLANT[']S DUE PROCESS RIGHTS UNDER THE NEW JERSEY CONSTITUTION AND THE U.S. CONSTITUTION.
A. INACCURATE NOTICE OF ALLEGED INFRACTION *[.]803.
B. THE D.O.C. WITHHELD EXCULPAROTY [SIC] EVIDENCE.
C. D.O.C. VIOLATED 48 HOUR RULE.
D. APPELLANT WAS DENIED CONFRONTATION.
E. H.O. FAILED TO STATE REASONS FOR SANCTIONS.
F. CS ASSISTED IN VIOLATING APPELLANT['S] DUE PROCESS RIGHTS.
DEPARTMENT OF CORRECTIONS UPHELD A SANCTION COGNIZANT THAT APPELLANT[']S RIGHTS DURING THE DISCIPLINARY HEARING WERE VIOLATED IN VIOLATION OF THE U.S. CONSTITUTION AMENDMENT FOURTEEN.
After carefully reviewing the record in light of the applicable law and written arguments advanced by the parties, we are satisfied that Thompson's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). We add only the following.
N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).
Here, we preliminarily observe that Thompson's claim that he received inadequate notice of the *.803 charge and the hearing officer failed to set forth the reasons for the sanction imposed, in accordance with N.J.A.C. 10-A:0-24.e, are arguments being raised for the first time on appeal. We decline to consider issues not previously raised before the agency unless the issues raised implicate the jurisdiction of the agency to preside over the matter or concern a matter of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The factual allegations surrounding the disciplinary infractions lodged against Thompson do not implicate jurisdictional questions nor raise matters of pubic interest.
There is no dispute that the DOC is the agency to whom the Legislature has reposed responsibility for maintaining order and imposing discipline within the prison community. N.J.S.A. 30:1B-3; City of Egg Harbor v. Atlantic County, 10 N.J. Tax 7, 18 (Tax 1988). While the public has a compelling interest in preventing the introduction and possession of contraband into the prison, the particular circumstances surrounding the allegations against Thompson do not involve matters of any great public interest.
Moreover, we are satisfied that the hearing comported with all due process requirements. Specifically, Thompson had twenty-four hours notice of the charges prior to the hearing on the merits. Although the initial notice of disciplinary infraction *.803 contained the wrong date for Odom's visit, by the time of the rehearing six months later, Thompson was well-aware that Odom's visit took place on March 4, 2007, rather than March 3, 2007. The hearing officers assigned to preside over both the initial hearing and rehearing were members of DOC's Central Office staff rather than from Riverfront and were therefore impartial. Further, because Thompson was charged with an asterisk offense, he was afforded the assistance of counsel substitute during the proceedings. Thompson was provided an opportunity to submit a written statement in which he denied his involvement with Odom's attempt to introduce drugs into the prison. Further, Thompson was offered and accepted the opportunity to confront adverse witnesses, but at the hearing actually declined to do so.
Likewise, we are satisfied that the hearing officer who presided over the second hearing clearly set forth the basis of the conclusion that the charge had been sustained against Thompson. The evidence relied upon included the investigative report of Investigator Riggs, photos, conversations between Thompson and Odom recorded the day before Odom's visit, and the written statement of the confidential informant. Therefore, we are satisfied the final administrative decision issued by the DOC is supported by substantial, credible evidence in the record. Henry, supra, 81 N.J. at 579-80.