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Perry v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 21, 2008

STEPHEN PERRY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 23, 2008

Before Judges Fuentes and Gilroy.

Appellant Stephen Perry is an inmate serving a life sentence for murder and other charges. He appeals from the final decision of the Department of Corrections (DOC) finding he committed a prison disciplinary infraction, prohibited act *.204, use of narcotic paraphernalia or possession of illicit drugs. N.J.A.C. 10A:4-4.1(a). The DOC sanctioned Perry by placing him in disciplinary detention for fifteen days, with credit for time served, imposing 300 days of administrative segregation, and 300 days loss of commutation time.

Perry submitted a urine sample on October 23, 2007, pursuant to the prison's random testing protocol. Immediately after providing the sample Perry signed a Continuity of Evidence Form, attesting that the sample had been witnessed, and that the vial containing the urine had been closed and labeled in his presence.

The specimen was analyzed at the DOC's laboratory. Two reports dated October 25, 2007, and October 29, 2007, indicated that the urine tested positive for opiates. Based on these results, the DOC filed charges against Perry on November 7, 2007. Perry pled not guilty to the charge and, at his request, was provided with the assistance of counsel substitute, and was granted the right to confront the witness against him by submitting written questions. The questions were read aloud by the hearing officer, and answered by the witness at the hearing.

Based on the evidence presented, the hearing officer found Perry guilty. Perry appealed to the prison administration. The charge and sanctions imposed were upheld by the reviewing administrative officer.

Perry now appeals to this court arguing that the sanctions should be vacated and his disciplinary infraction reversed, because the DOC failed to maintain a chain of custody of his urine sample. Specifically, Perry asserts in his brief that:

(1) the plastic bag in which the specimen cup was placed after testing was not sealed; and (2) the specimen cup had to be removed and placed in a refrigerator prior to testing. We affirm.

Appellant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In reviewing the decision of a State administrative decision, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Here, the record amply supports the DOC's findings. R. 2:11-3(e)(1)(D).

Affirmed.

20081121

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