April 9, 2010
DERRELL RIDDICK, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a final decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 10, 2010
Before Judges Cuff and C.L. Miniman.
Derrell Riddick appeals from final agency action of respondent Department of Corrections (DOC) finding him guilty of disciplinary infractions *.009, misuse or possession of electronic equipment not authorized for use; *.203, possession or introduction of any prohibited substances; and *.202, possession or introduction of a weapon. We affirm.
Riddick is serving a life sentence for murder and is incarcerated at Northern State Prison. At 3:09 p.m. on February 19, 2009, Senior Corrections Officer J. Castano and his K-9 partner Bosco, trained to detect cellular phones, conducted a search of Riddick's cell. Bosco detected a cellular phone inside a wall outlet in Riddick's cell. At 4:46 p.m. the same day, Officer Myron Kelley and his K-9 narcotics partner, Nikko, detected narcotics in an electrical outlet in Riddick's cell. Once the wall plate above the sink was removed, Senior Corrections Officer P. Clements discovered an orange security razor broken into two pieces, two packages of marijuana, and a package of assorted psychotropic medications.
Once testing of the substances was completed, Riddick was charged with the above offenses on February 20, 2009. The disciplinary hearing began three days later, but was postponed to obtain photographs of the seized items and some documents. It was again postponed for the same reason on February 25, 26, and 27 and March 2, 2009. Another postponement due to weather occurred on March 3 and the hearing finally reconvened on March 9, 2009.
Riddick pled not guilty and requested counsel substitute, who was provided. Riddick stated at the hearing that he did not have access to the interior of the electrical outlets, which were locked with special screws, and the contraband was not his. Riddick's counsel substitute stated that Riddick did not have the special tool required to remove the face plate from the outlets. Riddick declined to call witnesses on his behalf, as was noted by the hearing officer in the adjudication report. Riddick also declined the opportunity to cross-examine adverse witnesses, as was duly noted by the hearing officer. Riddick and his counsel substitute were given an opportunity to review the adjudication report and all of the evidence. Counsel substitute signed line sixteen of the report indicating that it accurately reflected what occurred at the hearing.
The hearing officer found Riddick guilty of all three charges, combining the *.202 charge with the *.203 charge for sentencing purposes. On each of the *.009 and *.203 charges, he imposed 365 days of administrative segregation, 365 days of lost commutation credit, thirty days of lost recreation privileges, fifteen days of detention with credit for time served, and 365 days of urine screening. In addition, he imposed 185 days of lost telephone privileges on the *.009 charge. Because both the *.009 and *.203 charges were "zero tolerance" disciplinary infractions, the hearing officer also imposed a permanent loss of contact visit privileges. The penalties on each offense ran consecutively.
On March 11, 2009, Riddick filed an administrative appeal. Two days later, Assistant Superintendent Eric Stokes upheld the decision of the hearing officer. This appeal followed. Riddick contends on appeal that he: "Has Shown and Provided Under 10A:4-9.8 That His Rights Under Due Process Were Violated As [He] Appeared Before The Northern State Prison Hearing Officer."
Specifically, he argues that under N.J.A.C. 10A:4-9.8(c) he was entitled to a hearing within three days and that the officers conducting a search of his cell did not find the type of tool required to remove the face plate on the electrical outlet. As a result, he contends the DOC failed to prove he had any access to the contents of the electrical outlet. He also points out that the DOC did not test his urine to prove he was using marijuana or drugs nor did it attempt to match the numbers on the cellular phone with his institutional phone list to prove he made calls using the cellular phone. He points out that he has been incarcerated for nine years and never submitted a positive urine sample. He contends he should have been given "the benefit of the doubt due to circumstances."
Riddick's arguments respecting urine screens and the phone numbers on the cellular phone were not made during the disciplinary hearing. We generally do not consider issues not raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Although there are exceptions to this rule, ibid., they do not apply here. As a result, we disregard these specific arguments.
Although N.J.A.C. 10A:4-9.8(c) requires a hearing within three days, it also allows "reasonable postponements." We are satisfied that the postponements here were reasonable and did not require dismissal of the disciplinary charges under N.J.A.C. 10A:4-9.9 or Avant v. Clifford, 67 N.J. 496, 529-30 (1975).
With respect to Riddick's argument respecting the failure to find the requisite tool, N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant, supra, 67 N.J. at 530 (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
Riddick's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D), (E). Because the absence of the requisite tool was only one factor to consider and because Riddick had sole access to the contents of his cell and the contraband was not discovered previously, the final administrative decision issued by the DOC was supported by substantial, credible evidence in the record. See Henry, supra, 81 N.J. at 579. Moreover, appellant was provided with adequate due process protections in the processing and hearing of the charges filed against him. See Avant, supra, 67 N.J. at 525-33.
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