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Davis v. New Jersey Dep't of Corrections

February 25, 2009

GARY DAVIS, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2009

Before Judges Stern and Lyons.

Gary Davis (Davis), an inmate at Bayside State Prison, appeals from a final decision issued by the New Jersey Department of Corrections (DOC) imposing disciplinary sanctions on him for committing prohibited act *.009, "misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention," in violation of N.J.A.C. 10A:4-4.1(a). Because we find that Davis was afforded all appropriate procedural guarantees and that there is substantial credible evidence in the record to support the DOC's decision, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On March 25, 2008, at approximately 12:45 a.m., corrections officers conducted a search of Davis' one-man cell. During the course of this search, an officer found a cellular telephone and a cellular telephone charger with the charger plugged into a wall outlet located in Davis' cell. Davis was lying on the bed next to the charging cellular telephone when the officer entered Davis' cell to conduct the search. As a result of Davis' possession of the cellular telephone and charger, he was charged with committing prohibited act *.009.

Davis pled not guilty of possession of the cellular telephone and charger, and on April 3, 2008, provided a statement denying that he ever "touched or used a cell phone" in his life, and alleging that the phone was planted and that he was "set up." Davis had requested a polygraph, which was denied. A hearing was conducted on April 7, 2008. The hearing officer granted Davis' request for the assistance of a counsel- substitute. Davis did not testify nor did he produce any witnesses. He relied upon his witness statement and the arguments of his counsel-substitute.

In adjudicating the charge, after reviewing the evidence, the hearing officer stated:

[b]ased upon a tip from a person (or persons) kept anonymous, [inmate's] cell was entered by SCO Gansert at [approximately] 12:45 a.m. on 3/25/08 for a search. Soon upon entering this cell/room[,] the SCO observed [inmate] upon his bed with a cell phone next to him (wall side) [such would also be found to be charging]. This evidence, which is not factually disputed, is sufficient to substantiate this charge. [Inmate] Davis presents no factual defense. There is no evidence of the phone being planted, nor that he was ignorant of its existence. SCO answer[ed] questions during confront[ation] hearing in an honest and straightforward manner [and] made no statements contradictory to the record. [Charge] is substantiated.

The hearing officer recommended sanctions of fifteen days of detention, 365 days of administrative segregation, 365 days' loss of commutation time, thirty days' loss of recreational privileges, permanent loss of contact visits, and disposal/confiscation of the cellular telephone and charger.

On April 9, 2008, Davis administratively appealed the decision of the hearing officer. On April 14, 2008, the DOC upheld the decision of the hearing officer and this appeal ensued. On appeal, Davis presents the following arguments for our consideration:

POINT I THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE VACATED INASMUCH AS APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS AS GUARANTEED BY BOTH NEW JERSEY STATE CONSTITUTION & THE UNITED STATES CONSTITUTION WHEN HEARING OFFICER FAILED TO EXPLAIN WHY HEARING OFFICER FAILED TO INFORM APPELLANT THAT CONFIDENTIAL INFORMANT WAS BEING USED.

POINT II THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE VACATED INASMUCH AS APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS AS GUARANTEED BY BOTH NEW JERSEY STATE CONSTITUTION & THE UNITED STATES CONSTITUTION WHEN HEARING OFFICER FAILED TO EXPLAIN WHY HEARING OFFICER FAILED TO FOLLOW STANDARDS SET FORTH IN N.J.A.C. tit. 10A:4-9.15 REGARDING USE OF CONFIDENTIAL INFORMANTS.

We note at the outset that "[c]courts have a limited role in reviewing a decision of an administrative agency." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We must determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the ...


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