January 19, 2010
SEAN JONES, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Axelrad and Espinosa.
Sean Jones, an inmate at East Jersey State Prison, appeals from a final decision of the Department of Corrections (DOC), adjudicating him guilty of the following charges: *.009, misuse or possession of unauthorized electronic equipment and.305, lying, prohibited by N.J.A.C. 10A:4-4.1.
These charges arise from the seizure of a cell phone, found hidden in the light fixture, during the search of a cell shared by Jones with another inmate, Rafael Nieves. Nieves was charged with a disciplinary infraction for possession of the telephone. Jones was interviewed and, after receiving Miranda warnings, denied any knowledge of the telephone and provided a written statement.
Visual inspection of the cell phone showed two incoming calls on November 25, 2008 from one telephone number in the (973) area code. Subscriber information and call records for that number were subpoenaed. The subscriber information identified Lisa Best, a person on Jones's visitor list, as the subscriber. The telephone records for her telephone showed several calls, some of which were lengthy, made to and from the cell phone seized from Jones's cell.
The disciplinary charges were served upon Jones and, following an investigation, the matter was referred to a hearing officer for further action. On the first day scheduled for the hearing, Jones pled not guilty to the charges. Jones's request for a counsel-substitute was granted. Jones was granted the opportunity to call witnesses. Jones asked that a witness statement be taken from Best and was advised that it was his responsibility to secure such a statement. The hearing was postponed to allow a witness statement to be taken from her. The hearing was postponed three more times for the same reason and was finally concluded on December 31, 2008.
Jones and his counsel-substitute were given the opportunity to make statements at the hearing. Jones stated that Best never visited him and that he never spoke to her on the telephone. He stated further that he gave Best's address to Nieves two years earlier and that he had nothing to do with them after that. Inmate Nieves provided a written statement in which he claimed to have no knowledge of anyone using the confiscated cell phone.
Jones declined to confront any adverse witnesses. He and his counsel-substitute were provided the opportunity to review the adjudication report and all evidence relied upon by the hearing officer.
The hearing officer found Jones guilty of both charges and combined the sanctions for the infractions, imposing 15 days detention, 365 days administrative segregation, 365 days loss of commutation credit, permanent loss of contact visits, 185 days loss of telephone privileges and 30 days loss of recreation privileges. Cindy Sweeney, Associate Administrator of East Jersey State Prison, upheld the hearing officer's decision. In this appeal, Jones raises the following issues:
THE HEARING OFFICER'S DECISION FINDING APPELLANT GUILTY OF VIOLATING PRISON RULES WAS ARBITRARY AND CAPRICIOUS AND NOT BASED UPON SUBSTANTIAL CREDIBLE EVIDENCE PURSUANT TO N.J.A.C. 10A:4-9.15(a).
IN PRO SE REPLY BRIEF
SINCE THE RESPONDENT'S ASSERTIONS ARE MISLEADING, BASED UPON CONVOLUTED LOGIC AND WITHOUT MERIT, THE DECISION RENDERED BY THE HEARING OFFICER MUST IN ALL FAIRNESS BE REVERSED AND VACATED.
We review decisions on prison discipline to determine whether the findings are supported by the record and give deference to the agency's interpretation of its regulations. Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). We defer to and do not reverse an agency decision unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001).
We are satisfied from our review of the record that the disciplinary proceedings were conducted in accordance with all applicable due process requirements. See McDonald v. Pinchak, 139 N.J. 188, 194-195 (1995); Avant v. Clifford, 67 N.J. 496, 522 (1975); Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 122-123 (App. Div. 2002). Jones did not have the right to obtain testimony from Best since she was not an employee of the DOC. N.J.A.C. 10A:4-9.13(a)(7). Therefore, the response by the Special Investigations Division that it would conduct no investigation to secure a statement from her and that Jones was responsible for doing so did not constitute a denial of due process.
We are also satisfied that the evidence relied upon by the hearing officer and the associate administrator provided the required "substantial" evidence to support the disciplinary violation against Jones. It follows that the disciplinary decision was not arbitrary, capricious, or unreasonable and should not be disturbed. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); N.J.A.C. 10A:4-9.15(a); R. 2:11-3(e)(1)(D).
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