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Smith v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 1, 2008

MALIK SMITH, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 9, 2008

Before Judges Wefing, Yannotti and LeWinn.

Malik Smith, an inmate in the custody of the Department of Corrections (DOC), appeals from the administrative decision rendered on June 29, 2007, finding him guilty of the following disciplinary infractions: *.803/*.009, attempting to possess cell phones; and *.306, conduct that disrupts institutional security. Smith pled guilty to disciplinary infraction .754, receiving money from the family of another inmate to further an illegal act; however, he claimed that he obtained the money for a legitimate purpose, namely to assist the inmate in retaining an attorney. Smith received fifteen days in detention, 365 days in administrative segregation, 365 days loss of commutation credits and 365 days loss of telephone privileges.

The DOC's Special Investigations Division (SID) conducted a lengthy investigation into a suspected conspiracy among certain inmates at New Jersey State Prison (NJSP) to obtain contraband, namely drugs and cell phones, through money laundering and the cooperation of compromised NJSP staff. The SID gathered information through confidential informants, videotaped interviews and recorded telephone conversations.

The SID discovered that the conspiracy was headed by another inmate, Dimpy Patel, who was assisted by his family members. Smith enlisted the assistance of his girlfriend, Tianna Toombs, to receive $2,000 from Patel's family. SID investigators determined that this money was to be used for the purchase of cell phones which would be smuggled into the prison.

SID investigators taped a telephone conversation between Smith and Toombs, in which Smith instructed his girlfriend "as to the manner, exact location and password[] (the term Chicken) that would allow for a financial transaction to be completed." SID investigators also conducted a videotaped interview of Toombs in which she acknowledged accepting a Western Union money transfer and that she used the code word "Chicken" during that process.

When Smith was interviewed by SID investigators, he admitted providing instructions to Toombs about receiving the money order. However, Smith told the investigators that he could not remember all of the details and that the purpose of the money transfer was to pay an attorney's retainer fee on behalf of Patel. When asked why he thought it would be necessary for Patel to send an attorney's retainer through Toombs rather than contacting the attorney directly, Smith refused to discuss the matter further.

SID investigators also interviewed several confidential inmate-informants who identified Smith, Patel and two other inmates as being involved in a conspiracy to acquire cell phones and drugs, by arranging for the items to be smuggled into NJSP by compromised staff members. Information obtained from these confidential inmate-informants indicated that Smith was an active participant in the conspiracy.

On appeal, Smith raises the following issue for our consideration:

THE OFFENSES MUST BE DISMISSED AND THE SANCTIONS VACATED BECAUSE RESPONDENT HAS FAILED TO PRESENT SUBSTANTIAL EVIDENCE LINKING SMITH TO THE ALLEGED CONSPIRACY.

We have thoroughly considered the record in light of this argument and the applicable law. We are convinced that Smith's arguments are entirely without merit. Therefore, we affirm. We add the following brief comments.

Smith argues that the DOC failed to vouch for the credibility and reliability of the information provided by the confidential inmate-informants because the "Adjudication of Disciplinary Charge" form did not have the "yes" box checked where the question as to informer reliability appeared. However, SID investigator Raphael Dolce provided a memo to the hearing officer dated June 12, 2007, expressly vouching for the reliability of the five confidential inmate-informants interviewed in the conspiracy investigation. The memo referenced prior occasions when some of these informants had provided reliable information. The memo also documented the specific information provided by these informants as to this conspiracy, and how that information led to charging Smith with the disciplinary infractions.

Based on the foregoing, we conclude that the DOC met the evidentiary standard set forth in N.J.A.C. 10A:4-9.15(a), which provides: "A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." The term "substantial evidence" has been defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chemical Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990)(quoting De Vitis v. N.J. Racing Comm'n., 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

The ongoing SID investigation into the smuggling of drugs and cell phones into NJSP furnished "substantial evidence" of Smith's involvement in the conspiracy. That evidence consisted of the taping of Smith's telephone conversations, the videotape of Toombs' statement and the information provided by confidential inmate-informants whose reliability and credibility were established both by their cooperation on prior occasions as well as by their offer of first-hand information about the conspiracy.

The scope of our review of the DOC's action is limited. Unless we find that the agency's action was either (1) arbitrary, capricious and unreasonable, or (2) not supported by substantial credible evidence of record, the challenged decision will not be disturbed. In re Taylor, 158 N.J. 644, 657 (1999); Barone v. Department of Human Servs., 210 N.J. Super. 276, 285 (App. Div.), aff'd, 107 N.J. 355 (1987). Applying that scope of review to the record in this case, we affirm for the reasons stated.

Affirmed.

20081001

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