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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 February 22, 2010
Before Judges Rodríguez and Chambers.
Rodney Johnson, a prison inmate at the New Jersey State Prison in Trenton, appeals from the final administrative disciplinary determination of the New Jersey Department of Corrections dated August 5, 2008, that he was in possession of contraband which he gave to another inmate, prohibited acts N.J.A.C. 10A:4-4.1(a)*.203 and *.803, and that he failed to produce a urine sample, prohibited act N.J.A.C. 10A:4-4.1(a)*.258. We reverse the *.203/*.803 determinations because they are not supported by substantial credible evidence. We affirm the *.258 determination but remand for imposition of separate sanctions for this offense.
On July 20, 2008, after the morning contact visit program in which Johnson had visitors, contraband was found during the strip search of Inmate Hicks, another inmate at the prison. Officers at the New Jersey State Prison in Trenton viewed a videotape of the morning visit program that showed Johnson holding an item and also showed Johnson conversing with Inmate Hicks. Because one item Johnson was holding looked similar to the contraband found during the strip search of Hicks and because the two inmates were viewed conversing prior to the discovery of the contraband, the officers concluded that the contraband was received by Johnson from his visitor and then given by him to Hicks.
Johnson was charged with possession or introduction of a prohibited substance, prohibited act N.J.A.C. 10A:4-4.1(a)*.203, and attempting or aiding another person to commit that offense, prohibited act N.J.A.C. 10A:4-4.1(a) *.803.*fn1
On July 22, 2008, at approximately 10:45 a.m. and again at 1:15 p.m., Johnson was ordered to provide a urine sample, but failed to produce the required minimum quantity of thirty milliliters. Defendant maintained that he was told the officer would return in twenty minutes to retrieve the sample, but the officer never did so. Johnson was charged with refusing to submit to testing for a prohibited substance, a *.258 offense under N.J.A.C. 10A:4-4.1(a).
An administrative hearing was held in accordance with N.J.A.C. 10A:4-9.8. Johnson contended that he was not guilty, and with respect to the charge regarding the contraband, he contended that the item in question held by him was a visitor badge. The hearing officer found Johnson guilty of all charges. For the *.803/*.203 charges, he imposed as a disciplinary sanction fifteen days of detention with credit for time served, 180 days of administrative segregation, 180 days of loss of commutation time, 30 days loss of recreation privileges, and a recommendation that his visitors that day be banned from further visitation. Johnson advises that this ban includes his mother.
The hearing officer did not impose separate sanctions for the failure to provide a urine sample but rather combined the punishment for that offense with the sanctions imposed on the *.803/*.203 charges. The decision of the hearing officer was upheld in a final decision by the designee of the administrator for the Department of Corrections. On appeal, Johnson contends that the hearing officer's decision was not based on substantial credible evidence and that his due process rights were violated.
Our role in reviewing an administrative decision is limited, and we may not "substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005). Our review must be "more than a perfunctory review." Id. at 353 (quoting Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000)). Rather, we must perform a "careful and principled consideration of the agency record and findings." Ibid. (quoting Williams v. Dep't of Corr., supra, 330 N.J. Super. at 204). "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
We have reviewed the record carefully, including viewing the videotape, and conclude that the evidence is not sufficient to support the charges of possession or introduction of a prohibited substance, in violation of N.J.A.C. 10A:4-4.1(a) *.203 and attempting or aiding another person to commit that offense in violation of N.J.S.A. 10A:4-4.1(a) *.803. Johnson's implication in Hicks's possession of the contraband is based on the officers' observations from the videotape of the visiting area. None of the reports of the corrections officers or the observations of the hearing officer state that they see Johnson with the contraband or that he was seen passing the contraband to Hicks. Rather the decision is based on the observations that Johnson was holding something that could have been the contraband and he was seen conversing with Hicks. However, given the many people in the room, the number of other interactions Hicks could have had there, and the fact that Johnson was holding the items openly and in plain view, we find these proofs insufficient to support a finding that Hicks obtained the contraband from Johnson. Accordingly, we reverse the finding that Johnson committed prohibited acts *.203 and *.803.
On the other hand, we find no basis to overturn the determination that Johnson refused to submit to urine testing for a prohibited substance, a *.258 offense under N.J.A.C. 10A:4-4.1(a). We note that he did not receive a separate sanction for this offense, but rather the sanction was combined with the related *.803/*.203 charges. As ...