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Vilkings v. New Jersey Dep't of Corrections

July 10, 2008

ANDRE VILKINGS, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 10, 2008

Before Judges Lintner and Parrillo.

This is a prison disciplinary appeal. Andre Vilkings, an inmate confined at Northern State Prison, appeals a Department of Corrections' (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.203, possession of a prohibited substance, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On June 26, 2007, while Vilkings was at the head of a line waiting to enter the "strip-frisk" room, Sergeant Holliday observed him drop a small package suspected of containing a controlled dangerous substance. Corrections Officer Wilson also witnessed Vilkings drop the plastic wrapped package, which were found to contain five suspect cigarettes. The five hand-rolled cigarettes tested positive for marijuana (THC).

Charges were served upon Vilkings on June 27, 2007, and Vilkings pled not guilty to the infraction. A hearing scheduled for June 29, 2007 was postponed because the lab results of the five cigarettes had not yet been received. The next hearing date of July 3, 2007 was also postponed to ascertain the existence of a videotape of the incident, but none was uncovered. A hearing on the charge was conducted on July 6, 2007, in which Vilkings was provided the assistance of a counsel substitute. At the hearing, Vilkings did not request any witness investigation and declined the opportunity to call witnesses in his defense or confront adverse witnesses.

In adjudicating Vilkings guilty of the *.203 charge, the hearing officer concluded:

Sgt. Holliday reports that while being strip [frisked] outside the gym [Vilkings] was found [to] be in possession of a [Saran] wrapped bundle. Subsequently, the contents of the bundle tested positive for marijuana. Inmate pleads not guilty. "[S]tated it wasn't his. He just came from [R]ahway." A-2, A-3, [A]-4, [A]-5 used in support of charge and relied on.

Vilkings received the following sanctions: fifteen days of detention, with credit for time served; 365 days of Administrative Segregation; 365 days loss of commutation time; and 30 days CORP C/S to Detention and permanent loss of contact visits. On administrative appeal, the guilty finding and imposition of sanctions were affirmed.

On appeal, Vilkings claims he was denied due process because he did not receive a timely hearing nor a videotape of the incident, and was not allowed to take a polygraph test or to provide a urine sample. We are satisfied that the final agency decision should be affirmed as appellant was afforded all the process due, and the finding of guilt is supported by substantial credible evidence.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Furthermore, it is not our function to substitute our independent judgment for that of an administrative body, . . . where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein. [Ibid. (citations omitted).]

In this case, the initial determination of the charge was made by a hearing officer in a disciplinary proceeding largely on credibility grounds. We find no basis to disturb the result, as we are satisfied that both the hearing officer's decision and the Department's ultimate determination are sufficiently grounded ...


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