On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 14, 2009
Before Judges Axelrad and Messano.
LaGrant Greer appeals from the final decision of the Department of Corrections (DOC) adjudicating him guilty of disciplinary offenses *.215, possession of a prohibited substance with intent to distribute, and *.203, possession or introduction of any prohibited substance, N.J.A.C. 10A:4-4.1. He contends his due process rights were violated in that he was not granted a timely hearing, was not permitted to speak with counsel substitute to formulate a defense prior to his hearing, was provided illegible documents, was denied confrontation with his accuser, was not served timely with his adjudication, his hearing was conducted without any statement from him or his court-line paralegal, and there were no lab results produced to prove the items he was in possession of were narcotics. Greer also contends there was insufficient evidence in the record to support the convictions. We reject Greer's arguments and affirm.
Greer, a laundry porter, was searched by Senior Corrections Officer Tracey Strickland on September 24, 2007 in the F-100 sallyport area of Northern State Prison. Greer was carrying a laundry bag in which a medical blanket was wrapped around several packages containing unknown substances believed to be drugs, arranged into "decks" and stored inside balloons marked "smack," "woody" and "tommy," all street names for drugs. Greer was placed in pre-hearing administrative detention and served with copies of the disciplinary charges on September 25, 2007. On September 27, 2007, Greer appeared before the hearing officer, who adjourned the hearing to obtain pictures of the seized items, and further adjourned the hearing at counsel substitute's request for information about the seized bag. At the hearing conducted on October 4, 2007, in which Greer was represented by counsel substitute, he declined the opportunity to call witnesses on his behalf and to confront adverse witnesses. Greer provided a statement to the hearing officer that the laundry was given to him by another inmate, but refused to offer any further information.
Hearing Officer Nolley heard the charge and evidence, determined Greer was guilty, and imposed sanctions. He noted that: (1) Greer was in possession of a new laundry bag without any inmate's name on it; (2) the packages inside were labeled with known drug names; (3) the amount of drugs confiscated was in excess of that which would be kept for personal use; and (4) Greer declined the offer to confront staff or call witnesses on his behalf. Greer's administrative appeal was denied on November 16, 2007 and this appeal ensued.
Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005)(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Our independent review of the record satisfies us that Greer was accorded all of the procedural due process requirements articulated by the Supreme Court in Avant v. Clifford, 67 N.J. 496 (1975), and reaffirmed in McDonald v. Pinchak, 139 N.J. 188 (1995) and Jacobs v. Stephens, 139 N.J. 212 (1995).
Although N.J.A.C. 10A:4-9.8(c) requires that an inmate placed in pre-hearing detention receive his hearing within seventy-two hours, the failure to adhere to this strict time limit does not mandate dismissal of the charges. N.J.A.C. 10A:4-9.9. Rather, the hearing officer may consider whether dismissal is warranted based upon the reason for and length of the delay, the prejudice to the inmate's defense, and the seriousness of the infraction. Though Greer's hearing was not conducted within seventy-two hours, he did not raise this issue either before the hearing officer or on administrative appeal. Regardless, however, we are satisfied there were ample reasons for the brief postponement of the final adjudicatory hearing, in part attributable to counsel substitute's request, and no specific claim of prejudice to Greer was occasioned by the minor delay.
Greer's other claims of procedural due process violations are belied by the record. Contrary to his assertion, he declined offers to call witnesses and confront staff, was appointed counsel substitute, and presented a statement to the hearing officer in his defense. As for the legibility of the report, Greer's counsel substitute acknowledged the accuracy of its contents by signing the form. Moreover, there is no evidence in the record that there was an undue delay in the review of his administrative appeal or that he was prejudiced by the delay. There is also no evidence in the record that Greer complained about the length of time the administration took to review his appeal.
Greer raised no argument during the hearing or on administrative appeal that the confiscated substances were not narcotics. Rather, he denied any knowledge or ownership of the items. Thus, there was no reason for the DOC to test the packages to determine if they were indeed narcotics. We are satisfied that even without the testing, the fact the items were packaged in a manner consistent with illegal narcotics, labeled with names consistent with illegal narcotics, and hidden inside a laundry bag, rendered it reasonable for the hearing officer to determine the items were prohibited substances. We are also satisfied there is substantial credible evidence in the record to support the hearing officer's finding that the drugs belonged to Greer, who planned to distribute them. The drugs were hidden in a towel inside a new laundry bag with no other inmate's name on it, and although Greer now contends it was someone else's laundry bag and drugs, he refused to provide any information about the purported owner of the bag when questioned or at the hearing.
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