On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2009
Before Judges Reisner and Yannotti.
Stanley Niblack (Niblack) is an inmate in the State's correctional system. He appeals from a final determination of the Department of Corrections (DOC), finding him guilty of violating a condition of any community release program, which is prohibited act .257 under N.J.A.C. 10A:4-4.1(a). For the reasons that follow, we affirm.
Niblack is presently serving a ten-year sentence, with a four-year, six-month period of parole ineligibility, as a result of his conviction on various offenses involving a controlled dangerous substance. In August 2008, Niblack was confined to Kintock, a halfway house. On August 30, 2008, Oliver Williams, Jr. (Williams), the manager of Kintock, observed Niblack endeavoring to return to the dorm area during visitation. Williams told Niblack to return to the front lobby area. Niblack said that he had to go to the restroom.
Williams issued a disciplinary report, charging Niblack with violating a condition of the community release program. In his report, Williams noted that Niblack was aware that Kintock's procedures require inmates to use the front lobby restroom during visits. In addition, all inmates must be searched before they go back to the dorm area. Niblack was returned to the Southern State Correctional Facility (SSCF).
On September 3, 2008, Niblack was served with the charge and it was referred to a sergeant for investigation. Niblack pled not guilty. Niblack did not name any witnesses. He requested the assistance of counsel substitute, which was granted. The sergeant referred the matter to "courtline" for a disciplinary hearing.
The hearing took place on September 5, 2008, before hearing officer Robert Makarski. The adjudication form states that Niblack pled guilty. The form indicates that neither Niblack nor his counsel substitute made a statement at the hearing. Niblack did not call any witnesses. He also declined the opportunity to confront any witness against him.
The hearing officer found Niblack guilty of the charge and referred the matter to the Classification Committee for review of Niblack's custody status. Niblack filed an administrative appeal. He did not contest the finding of guilt and only made a plea for leniency. He asked to be returned to his previous placement. The acting administrator of SSCF upheld the sanction. This appeal followed.
The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Twp. of Middletown, 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable" or "lacks fair support in the record[.]" Ibid. Furthermore, when reviewing a determination of the DOC in a prisoner disciplinary matter, we consider whether there is substantial evidence that the inmate has committed the prohibited act and whether, in making its decision, the DOC followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 193-195 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995).
Niblack argues that he was denied procedural due process because the DOC failed to comply with N.J.A.C. 10A:4-9.2. The regulation provides that the disciplinary report must "be served upon the inmate within [forty-eight] hours after the violation unless there are exceptional circumstances." Ibid. Here, the violation occurred on August 30, 2008, and the DOC served Niblack with the disciplinary report on September 3, 2008.
The DOC's failure to serve the report in a timely manner does not require dismissal of the charge. N.J.A.C. 10A:4-9.9(a) states that "[t]he failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." Moreover, Niblack has not established that he was prejudiced by the late notice.
Niblack also argues that the hearing officer erroneously entered a guilty plea to the charge. We disagree. The hearing officer noted on the form that Niblack pled guilty to the charge. Niblack's counsel substitute signed the adjudication form, indicating that information set forth in sections one to fifteen recounted "what took place at the inmate disciplinary hearing." Moreover, as stated previously, in his administrative appeal, Niblack did not challenge the finding ...