November 14, 2008
ANTONIO RIVERA, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 November 3, 2008
Before Judges Reisner and Sapp-Peterson.
In this inmate disciplinary case, Antonio Rivera appeals from a final determination of the Department of Corrections (DOC) issued on October 25, 2007. We affirm.
Rivera is serving a twenty-six year sentence with a twelve-year parole bar, for robbery, weapons offenses, distribution of a controlled dangerous substance and receiving stolen property. He was incarcerated in Southern State Correctional Facility. On October 1, 2007, Rivera was required to submit a urine sample for drug testing, after officials in the mail room at Southern State received an anonymous note that certain inmates in Rivera's housing area were using heroin.*fn1
As part of the testing process, Rivera signed a Continuity of Evidence (chain of custody) form acknowledging that after he voided urine for the test, the testing container had been "[c]losed, sealed and labeled in my presence." The sample was immediately tested on-site and was positive for opiates. The sample was then transmitted to an outside laboratory for re-testing. See N.J.A.C. 10A:3-5.11.
When the sample was taken from the prison refrigerator and sent to the testing lab, the chain of custody form was signed by Sergeant Graham and a laboratory courier, Mark Watkins. However, Watkins mistakenly signed the form on the line designated "D. Specimen removed from evidence refrigerator" instead of "E. Specimen transported to Designated Laboratory." Graham immediately noticed the error and directed Watkins to cross out his name on line D and sign on line E. Watkins did so, placing his initials next to the cross-out. Graham then signed his own name on line D, and wrote a memorandum to the file explaining the reason for the alteration on the form.
The testing lab results came back positive for opiates as well, and Rivera was charged with prohibited act *.204, using a prohibited substance. See N.J.A.C. 10A:4-4.1. Rivera received a hearing on the charge, which included the right to confront the witnesses against him. The hearing officer upheld the charge, and Rivera appealed to Prison Administrator Bartkowski, contending that the urine specimen was mishandled. Bartkowski denied the appeal, concluding that "[t]he continuity of evidence was not broken, the transport personnel signed on the wrong line[;] it was noticed by the Sgt. and corrected."
On this appeal, Rivera contends that there was no justification for the test, in that there was no "reasonable factual basis . . . to suspect appellant of using or possessing a non-alcoholic prohibited substance." He also contends that the test was unreliable because of a break in the chain of custody. Having reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We add the following comments.
We will affirm the agency's decision so long as it is supported by sufficient credible evidence in the record and is consistent with applicable law. See In re Taylor, 158 N.J. 644, 656 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The DOC decision meets that standard. Prison officials performed the test based on an anonymous note indicating that Rivera (whom the note-writer called "Blue"), was using drugs. This was a "reasonable factual basis" on which to require him to take a drug test. See N.J.A.C. 10A:3-5.10(b)(6). Rivera signed an acknowledgement that the sample container was sealed in his presence. There was also sufficient credible evidence to support the agency's determination that the chain of custody was unbroken, although Watkins initially signed the form on the wrong line.