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Marshall v. Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 23, 2009

SAQUAN MARSHALL, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Sapp-Peterson and Espinosa.

Saquan Marshall is an inmate confined at East Jersey State Prison. He appeals from the final agency decision finding him guilty of disciplinary infraction *001,*fn1 possession of anything related to a Security Threat Group, N.J.A.C. 10A:4-4.1. We affirm.

On February 9, 2008, Senior Corrections Officer Michael Greene confiscated two photographs from Marshall's cell that he believed were related to Security Threat Groups. Marshall was charged with violating disciplinary infraction *011, possession of Security Threat Group materials. He requested the assistance of counsel substitute which was granted. The photographs were reviewed by the Special Investigations Division (SID) within the prison.

A hearing on the charge was scheduled for February 11, but was adjourned because the report from SID had not yet been received. That report was issued by Investigator W. David Calderon on February 14. In the report Calderon indicated that members of the East Coast Bloods (Bloods) "will expose or exhibit certain colors on their right side to show their association. Colors known to be used by blood members are red, green, orange, pink and brown." He also reported that another indicator of Bloods affiliation is that a member will "exhibit certain colors [including the color orange] on their right side to show their association." One of the photos confiscated depicted a male wearing an orange-colored bandana wrapped around the right wrist and an orange-colored bandana hanging from the right side of the male's waist line. The following words were also written on the back of the same photo: "AND YOU SEE THE GANGSTA AGAIN ON THAT FUNKY SHIT IN THE PARKING LOT WIT MY SHIT BRAIDED."

The hearing was conducted the following day. Marshall pled guilty with an explanation to the charge. He acknowledged possessing the two pictures, which he claimed depicted his late nephew, but claimed that he did not know that the pictures were gang-related. The hearing officer rejected Marshall's explanation and found the charge supported by the evidence.

Our scope of review of administrative decisions is quite limited. We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are not to substitute our judgment for that of the agency, Brady v. Dept of Pers., 149 N.J. 244, 264 (1997), nor substitute our fact-finding for that of the agency. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide of the mark as to be manifestly mistaken."

Judged by these standards we are satisfied there is substantial credible evidence in the record to support the agency decision and discern no basis for our intervention. While Marshall is correct that the "NOTICE (S) TO THE INMATE POPULATION" circulated to inmates does not provide specific information as to how to identify a security threat group, the hearing officer in this matter did not act arbitrarily, capriciously or unreasonably in rejecting Marshall's explanation that he was unaware that he was in possession of prohibited gang material. Even assuming Marshall was unaware of the significance of the orange bandanas depicted in one of the confiscated photographs, the inscription on the back of the photograph depicting the male wearing the bandanas describes the individual as a "gangsta." Under these circumstances Marshall had specific notice that he was in possession of a photograph of a gang member.

Affirmed.


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