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Guions v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 9, 2009

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

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 27, 2009

Before Judges Wefing and LeWinn.

Appellant is an inmate in the custody of the Department of Corrections. He is appealing from a final agency determination finding him guilty of violating .803/.306, attempting to commit conduct which disrupts the orderly running of the institution. After reviewing the record before us, we affirm.

Appellant was charged with this disciplinary infraction after a search of his cell turned up a bar of soap which on first impression appeared to be factory-wrapped. A closer inspection, however, revealed that it contained an impression of a security key. After defendant was found guilty of this infraction, sanctions were imposed. On appeal, defendant raises the following contentions.

POINT I

THE DECISION OF THE HEARING OFFICER VIOLATES APPELLANT'S RIGHT TO DUE PROCESS AND IN THE INTEREST OF JUSTICE SHOULD BE VACATED.

(a) The Decision of the Hearing Officer Should Be Vacated Because It Was Not Based Upon "Substantial Credible Evidence.["]

(b) Hearing Officer Failed to Reasonable [sic] Articulate His Reasons for Concluding Appellant Should Be Held Responsible for Any Contraband Allegedly Found in Appellant's Cell.

POINT II

THE HEARING OFFICER FAILED TO CONSIDER ALL THE FACTORS INVOLVED IN THE INSTANT CASE AND THEREBY APPELLANT'S RIGHT TO DUE PROCESS.

Appellant was placed in temporary closed custody, and his cell was carefully searched after a report was received that he was in possession of contraband. That search led to the discovery of a bar of soap secreted under the metal counter top located between the sink and the cell's food port. When the bar was unwrapped, it was found to contain an impression of a security key. Appellant denied that the bar of soap belonged to him and denied any knowledge of a key impression.

Appellant's request for a polygraph examination was denied. He did, however, exercise his right of confrontation with respect to the officers who were involved in the search of his cell.

We note the limited scope of our review of a matter such as this. An appellate court will ordinarily not disturb such an administrative determination unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence.

[In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008).]

Appellant has failed to meet that threshold. The hearing officer rejected appellant's contention that anyone else could have hidden the bar of soap without his knowledge because it was located within arms' reach of the food port. In fact, the hearing officer went so far as to visit the cell to determine the plausibility of this assertion. That physical inspection satisfied the hearing officer that no one else could have had access to the site where the bar of soap was discovered.

The appellant received all the process that was due to him. Avant v. Clifford, 67 N.J. 496, 525-62 (1975). The determination that appellant was guilty of this disciplinary infraction finds substantial support in the record, and it is affirmed.

Affirmed.

20090409

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