April 7, 2009
DAVE THOMAS, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Administrative Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2009
Before Judges Fuentes and Chambers.
Dave Thomas, an inmate at the Riverfront State Prison, appeals from the final agency decision of the New Jersey Department of Corrections (DOC) finding that he attempted to purchase illegal drugs, thereby committing prohibited act.754, "giving money or anything of value to, or accepting money... with an intent to further an illegal or improper purpose," in violation of N.J.A.C. 10A:4-4.1(a). Thomas contends that he did not commit this offense and that the evidence does not support the DOC finding that he did so. He further maintains that he was denied his due process right of confrontation in violation of N.J.A.C. 10A:4-9.14. We conclude that the record does not contain substantial evidence that Thomas committed this offense and reverse.
The evidence is uncontroverted that inmate Walter Byers, also known as Squirt, conducted an illegal drug operation at the prison. He would arrange to have prisoners send monies to a company called Savion's Favorite Characters Inc. (Savion's), and in return, they would receive drugs (marijuana) packaged in balloons or bags of M&M's candies. The sale price for a drug filled item was $50. On December 6, 2007, while Byers's drug operation was in effect, Thomas had the prison remit the sum of $49.99 to Savion's. The remit form indicates that the money was sent to pay for pictures. A prison generated report lists a number of inmates, including Thomas, who sent money to Savion's, although the amount of money sent by each prisoner varies. Based on this evidence, Thomas was charged with committing prohibited act.754.
Thomas contended that his transaction with Savion's was legitimate. He sent the money to Savion's in order to purchase pictures with his photograph superimposed on cartoon figures to use as Christmas presents for nephews and nieces. When he did not receive the materials, he sent Savion's a letter of complaint; at the hearing he showed the hearing officer this letter. Thomas has receipts showing that he purchased other cartoon materials earlier that year from another business. Further, Byers signed a statement dated May 1, 2008, stating that another inmate had made a legitimate purchase from Savion's and was not involved in the drug trade.*fn1
The hearing officer found Thomas guilty on the basis that Thomas had remitted the money to Savion's and that Byers's written statement and letters established drug trading through Savion's. Thomas was sanctioned fifteen days in detention, ninety days administrative segregation time, and sixty days loss of commutation time. On appeal, the agency upheld the finding of guilt, but suspended sixty days of the administrative segregation time.
In this appeal, Thomas argues that the evidence does not support this finding. He also contends that his request to confront Byers with written questions was denied. While he signed the adjudicatory form indicating that he rejected the offer of in-person confrontation, Thomas maintains that he was required to sign this form at the commencement of the hearing.
A hearing officer's finding that an inmate committed a prohibited act must be supported by "substantial evidence."
N.J.A.C. 10A:4-9.15(a). Our role in reviewing an administrative decision is limited, and we may not "substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005). Further, disciplinary decisions need not provide the same level of detail required in other matters. Id. at 353. We are required to perform "more than a perfunctory review." Ibid. (quoting Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). Rather we must perform a "careful and principled consideration of the agency record and findings." Ibid. (quoting Williams v. Dep't of Corr., supra, 330 N.J. Super. at 204). "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)) (alteration in original).
Applying these standards to this case, we conclude that the proofs are insufficient to support a finding that Thomas committed this prohibited act. Certainly, the proofs support a finding that Byers was engaged in the illegal sale of narcotics to prisoners through Savion's, and the proofs support a finding that Thomas had monies sent to Savion's for a purchase. However, the proofs do not establish the critical link necessary for a finding of guilt, namely that Thomas had the monies sent to Savion's for the purpose of purchasing narcotics. Thomas has come forward with an explanation that his remit to Savion's was for a legitimate reason. No evidence in the record establishes that all monies sent by inmates to Savion's were for the purpose of purchasing drugs. The statement by Byers indicates that at least one inmate made a legitimate purchase from Savion's.
Further, the illegal drugs were distributed through balloons and bags of M&M's candies, not pictures, as ordered by Thomas. Thomas has no history of drug infractions during his approximately twenty years in prison. No drugs, balloons, or bags of M&M's candies were found in his possession. Neither Byers nor any other witness has come forward stating that Thomas sent the monies to Savion's in order to obtain drugs. As a result, the record does not contain substantial evidence to support a finding that Thomas had money sent to Savion's for the purpose of obtaining narcotics.
In light of this conclusion, we need not reach the question of whether Thomas's due process rights of confrontation under McDonald v. Pinchak, 139 N.J. 188, 198 (1995), and N.J.A.C. 10A:4-9.14 were violated.