On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2008
Before Judges Parrillo and Lihotz.
This is a prison disciplinary appeal. Luis Mateo, an inmate currently confined at East Jersey State Prison, appeals from a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.258, refusal to submit to testing for prohibited substances, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
The evidence established that on November 6, 2007, Senior Corrections Officer (SCO) Robbins reported to Sergeant Sprately that Mateo appeared "disoriented and his eyes looked glazed over." Consequently, at 5:15 p.m., Sergeant Sprately ordered Mateo to submit to a urine specimen. Because he believed that Mateo tampered with his urine sample, Sprately initiated a *.261 charge and transferred Mateo from intake to the hospital, and then to pre-hearing detention. While Mateo was in detention, SCO Rodriquez reported to Sprately at 7:18 p.m. that Mateo had refused to urinate, stating "you guys are trying to set me up I am not pissing." Because he did not provide a urine specimen within the requisite two-hour period allowed inmates, N.J.A.C. 10A:3-5.11(i)(1) and (2), Mateo was then charged with committing prohibited act *.258.
Mateo pled not guilty to the charge and was provided counsel substitute. At the November 19, 2007 hearing, Mateo gave the following statement:
[T]hey took me to detention. I did not get a chance to piss. I am willing to submit at any time. I was brought back here. Sprately changed his statement. He said I refused down at detention. After they brought me down here [detention] they never came back to ask for my urine. I/m [inmate] requested leniency.
Counsel substitute also made a statement on Mateo's behalf:
He [Mateo] did not put anything in the urine. There were three inmates in there with him. He was actually only given 3 minutes to provide a urine sample. Also the initial order was voided when they changed locations. When they brought him down to detention they have to give him another 2 hours because that's another different order. Also, the log book will show Sprately never came down here to detention. They should have kept him at intake the remainder of the 2 hours. The designated area is intake and they moved him from there. We request a dismissal for the long delay.
In finding Mateo guilty of the disciplinary charge, the hearing officer concluded:
I/M [inmate] pled not guilty but is found guilty as Im did not provide a urine sample in the required 2 hours. There was adequate probable cause in (A6) SCO Robbins notifying the Sgt. of the IM behavior & appearance, and the order to void was legally given by the sergeant at 5:15 pm. The Im was given 2 hours to provide a sample but refused at 7:15 pm. The fact that the Im's location was changed from intake to the hospital to detention does not mean a new order to void has to be given. The original 5:15 order still stands. The clock "continues to tick" and the Im knew he had to provide the sample. Report indicates that at 7:15 [pm] Im even stated "I'm not pissing" as a final refusal. Im had an adequate water supply, witnesses had no statement regarding whether or not a sample was provided or refused. Im was offered in person confrontation, but declined the offer, including whether or not Sprately actually was present in detention at 7:15. A clerical omission in a log book does not mean that a staff member wasn't there and counsel sub[stitute] notation is without merit.
Upon being adjudicated guilty, Mateo was sanctioned: fifteen days of detention, with credit for time served; 180 days of administrative segregation; permanent loss of contact visits; 180 days loss of commutation time; 180 days of urine monitoring, and drug programming. This determination was upheld on administrative appeal.
On appeal here, Mateo argues that he was denied due process because: (1) the chain of custody was broken; (2) he was not in the proper testing area when required to provide a urine sample; (3) correction officers failed to follow the proper procedures for urine testing; (4) the 5:15 p.m. order to provide a urine sample was void because he was moved from intake to the hospital and then to detention where he was supposedly left alone; (5) neither SCO Rodriguez nor Sgt. Sprately were present in the pre-hearing detention area at 7:15 p.m. when Mateo was asked to provide a urine specimen; (6) he was provided with ineffective assistance of counsel because his counsel substitute did not request in-person confrontation of the correction officers; and (7) that three separate hearing officers adjudicated his disciplinary hearing, and he therefore, should be granted a new disciplinary hearing pursuant to Ratti v. Dep't of Corr., 391 N.J. Super. 45 (App. Div. 2007), which held that "when credibility determinations are to be made, it is imperative that a single finder of fact receive all the evidence and make determinations based on all of the ...