January 7, 2010
QUADIR BARNES, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 9, 2009
Before Judges Cuff and Payne.
Quadir Barnes appeals from his convictions for commission of disciplinary offenses *.009 (possession of an unauthorized electronic communication device) and .256 (refusal to obey a staff order). See N.J.A.C. 10A:4-4.1(a). As the result of his convictions, Barnes was sanctioned on the *.009 charge with ten days of detention, permanent loss of contact visits, 365 days of administrative segregation, ninety-five days' loss of telephone privileges, 275 days' loss of commutation time, and a status review. Sanctions on the .256 charge were merged with those on the *.009 charge.
On appeal, Barnes presents the following argument:
APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE DISCIPLINARY HEARING OFFICER WHEN SHE BELIEVED THAT SGT. BUSSEY HAD NO REASON TO LIE ABOUT A CELL PHONE BECAUSE OF HIS YEARS OF SERVICE; SHE ALSO BECAME PARTIAL TO THE CASE; AS A RESULT APPELLANT'S RIGHTS TO A FAIR AND IMPARTIAL HEARING WERE IMPINGED UPON BY THE WHOLE PROCESS.
The record discloses evidence that, on January 3, 2009, Sgt. Bussey entered the bathroom of Dorm I of Minimum Custody Unit II at Northern State Prison. After entering, he heard a person in the toilet area talking. Sgt. Bussey walked to the location where he heard the voice, pulled back the curtain, and discovered Barnes talking on a grey cell phone. Sgt. Bussey demanded that Barnes relinquish the phone. However, Barnes refused and, instead, flushed the phone down the toilet, while stating: "I am flushing this." Following the incident, Barnes was charged with prohibited acts *.009 (possession of an unauthorized cell phone) and .256 (refusal to obey an order).
The charges were considered concurrently at a courtline hearing conducted on January 14, 2009. At the hearing, at which Barnes was represented by counsel substitute, Barnes pled not guilty to the charges, stating that he was listening to a Walkman, not speaking on a cell phone. Additionally, Barnes claimed that the charges were issued in retaliation for his execution of an Inmate Remedy Form, two weeks earlier, in which he complained that Senior Corrections Officers Dasher, Mitchell and Randall were harassing him and abusing their authority. In addition to his own testimony, Barnes offered the statements of three fellow inmates, each of whom claimed never to have seen Barnes in possession of a cell phone. Barnes also asserted his right to confront Sgt. Bussey who, in answer to a series of eighteen questions, in essence affirmed that he had seen a cell phone, not a Walkman; that it had been flushed by Barnes down the toilet; and that no effort to retrieve it had been made because the prison used inmates as plumbers, and it would not use another inmate for such retrieval purposes.
At the conclusion of the hearing, the hearing officer sustained the charges against Barnes, stating, in part:
Inmate requested confrontation with Sgt. Bussey. Sgt. Bussey completed the confrontation w/o any hesitation. Inmate stated he had a walkman. Sgt. Bussey stated he had a cell phone & flushed it when he asked for it. The Sgt. was credible & did not try to avoid any questions or the confrontation. The Sgt. was clear about what he heard & saw.
The hearing officer also noted testimony by Barnes that, prior to the incident in question, Barnes had no problems with Sgt. Bussey, and testimony by Sgt. Bussey that "he had no issues w[ith] the inmate." On appeal, the determination of the hearing officer was sustained by the Department of Corrections. In the present appeal, Barnes argues that the record did not contain substantial evidence of his guilt, and that the hearing officer acted in a biased fashion when she accepted Sgt. Bussey's testimony as credible, particularly in light of Bussey's failure to call institutional plumbers to retrieve the cell phone. According to Barnes, Sgt. Bussey's decision not to call the plumbers was the result of his knowledge that there was no phone in the drain. Additionally, Barnes repeats his claim that the charges against him were retaliatory. And as a final matter, Barnes claims that he requested the hearing officer to "investigate further into the availability of this so-called cell phone," pursuant to N.J.A.C. 10A:4-9.6, but that she refused, thereby curtailing his right to develop and present evidence in his defense.
We have previously expressed the principles guiding our review of matters such as this in the following terms: Our review of agency determinations is quite limited. We can overturn only those administrative determinations that are arbitrary, capricious, unreasonable, or violative of expressed or implicit legislative policies. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). We will also reverse administrative decisions that are unsupported by substantial, or sufficient, credible evidence in the record. See McDonald v. Pinchak, 139 N.J. 188 (1995); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). Furthermore, "[w]here there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chemical Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990) (quoting DeVitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)). In such a situation, we cannot substitute our judgment for that of the agency, even if we would have decided the case differently had we heard the evidence. [Murray v. State Health Benefits Comm'n, 337 N.J. Super. 435, 442-43 (App. Div. 2001).]
In the present matter, the hearing officer, utilizing appropriate criteria, determined that the testimony of Sgt. Bussey regarding his discovery of Barnes talking on the telephone, his order that the phone be relinquished, and Barnes's disregard for that order was credible. We have been offered no precedent to suggest that such eye-witness testimony, standing alone, provided insufficient evidential support for the charges against Barnes, and that retrieval of the phone was required. Indeed, we have held in the analogous context of an appeal from convictions for murder, possession of a firearm for an unlawful purpose, and possession of a firearm without a permit that the convictions - requiring a higher standard of proof than that applicable here - could properly be premised on eye-witness testimony, without production of the weapon allegedly utilized by the defendant. State v. Allen, 337 N.J. Super. 259, 270-71 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). Moreover, if Sgt. Bussey's testimony is to be believed, as the hearing officer concluded, it was Barnes's conduct that resulted in the unavailability of the phone at issue. In this circumstance, Barnes can hardly complain of its absence.
Barnes asserts, as he did at the hearing, that the charges against him were retaliatory. However, he has offered no evidentiary support for the conclusion that Sgt. Bussey, who was not the subject of any of Barnes's complaints, nonetheless acted in a retaliatory fashion and without factual support in reporting Barnes's conduct to prison authorities.
As a final matter, we reject Barnes's argument that the hearing officer abused her discretion in refusing to conduct a further investigation of the matter. N.J.A.C. 10A:4-9.6 permits a hearing officer to direct further investigation "in any case where he/she is of the opinion that the [disciplinary] report is not properly made out or the facts and circumstances are not sufficient to set forth a basic understanding of the incident." The requisite preliminary showing is absent in this case.
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