May 18, 2010
WILLIAM MUNDORFF, APPELLANT,
NEW JERSEY 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 May 4, 2010
Before Judges Carchman and Lihotz.
Appellant William Mundorff, an inmate at South Woods State Prison, appeals from a final decision of the Department of Corrections (DOC) adjudicating him guilty of prohibited act *.205, misuse of authorized medication, N.J.A.C. 10A:4-4.1. Following a hearing, appellant was sanctioned 15 days detention, 120 days of loss of commutation credit and 120 days of administrative segregation. On the administrative appeal, the Commissioner's office affirmed the hearing officer's findings and sanctions. Appellant appealed, and we affirm.
These are the relevant facts adduced from the record.
On October 23, 2008, at approximately 8:50 p.m., Senior Corrections Officer (SCO) Casper witnessed inmate Mundorff pass a small piece of white paper to inmate Gonzales in dayroom #1137. Immediately afterwards, Gonzalez was seen passing the white tissue paper to inmate Bonilla. The paper contained four white pills, later identified as Ultram 50mg, a prescription drug. Appellant was prescribed Ultram, while Bonilla and Gonzalez were not. A later search of Bonilla's bunk revealed white tissue paper containing four white pills. The pills were identified as Ultram 50mg.
Appellant was charged with committing prohibited act *.205, misuse of authorized medication.
On October 24, 2008, charges were served on appellant. Appellant pled not guilty and, at his request, was granted a counsel substitute. The hearing began on October 27, 2008, but was postponed to obtain a psychological report. The hearing was again postponed on October 29, 2008 and October 31, 2008 to obtain additional information, including information from an officer. The hearing was concluded on November 3, 2008.
Following the hearing, the hearing officer found appellant guilty of *.205, misuse of authorized medication.
On appeal, appellant asserts that he was denied the opportunity to take a drug test or a polygraph examination. He also challenges the fact-finding before the Commissioner.
We have carefully reviewed the record and conclude that appellant's arguments are without merit. R. 2:11-3(e)(2). We add the following comments.
Prison disciplinary hearings are not a criminal prosecution and the full spectrum of rights due to a criminal defendant do not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). However, prisoners are entitled to certain limited protections prior to being subject to disciplinary sanctions. These rights, defined in Avant include: (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal that may consist of personnel from the central office staff of the Department of Corrections; (3) a limited right to call witnesses and present documentary evidence in defense of the charges; (4) a limited right to confront and cross-examine adverse witnesses; (5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; (6) where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute. Id. at 525-33. The procedural due process requirements articulated in Avant were reaffirmed by the New Jersey Supreme Court. See McDonald v. Pinchak, 139 N.J. 188, 194-99 (1995); Jacobs v. Stephens, 139 N.J. 212, 215 (1995). The Court found that the current regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald, supra, 139 N.J. at 202.
Here, the requirements alluded to in Avant were met. Appellant received timely notice of the charges and a prompt initial hearing. N.J.A.C. 10A:4-9.8(c) (requiring a hearing within three days of placement in pre-hearing detention unless, as here, the third day falls on a weekend). The hearing was conducted before an impartial tribunal, and appellant was given the opportunity to proffer both an oral and written statement. He was afforded counsel substitute as well.
Although he now claims that he was entitled to a drug test and polygraph exam, we note that appellant did not make that request below, see Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 230 (1998) (noting that appellate court will consider matters not properly raised below only where the matter is "of sufficient public concern") (citations omitted); State v. O'Hagen, 380 N.J. Super. 133, 139 (App. Div. 2005) (same), aff'd, 189 N.J. 140 (2007), and our review of the record indicates no factual underpinning that would support the propriety of the administration of such test. See N.J.A.C. 10A:3-7.1(c) ("An inmate's request for a polygraph examination shall not be sufficient cause for granting the request."); Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005) ("[A]n inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process."); N.J.A.C. 10A:3-5.10(b) (providing specific instances when an inmate "shall be tested" for prohibited substances, none of which are for the charge of misuse of authorized medication).
We have a limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009); In re Taylor, 158 N.J. 644, 656-57 (1999). The relevant standard of review is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole[.]'" In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). In appeals concerning prison infractions, our focus must be on whether an adjudication of guilt is supported by "substantial evidence[.]" Avant, supra, 67 N.J. at 530; see also McDonald, supra, 139 N.J. at 195-96. The record before us provides sufficient credible evidence to support the hearing officer's findings as affirmed by the Assistant Superintendent. The evidence presented to the hearing officer supported the finding that appellant violated prohibited act *.205.
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