June 21, 2010
MILTON P. DURHAM, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 February 3, 2010
Before Judges Wefing and LeWinn.
Milton Durham is an inmate in the custody of the Department of Corrections. He appeals from a final agency decision finding him guilty of disciplinary infraction *.053, indecent exposure.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
The charge against Durham was based upon an incident which occurred on July 31, 2007, at New Jersey State Prison. Durham was being held in administrative segregation. A nurse was making triage rounds, and Durham stopped her and gave her a medical call slip dated July 5, 2007, more than three weeks previous. He told her that he had gotten a staple in his penis and asked if she wanted to see; he then took out his penis, saying "Look at my stuff."
Durham was served with a disciplinary charge on August 1, 2007, and the matter was referred for a hearing. The hearing itself was adjourned to accommodate Durham's request for confrontation with respect to the nurse and to permit consideration of his request for a polygraph examination. The latter was denied. Durham propounded written questions to cross-examine the nurse in question. Upon receipt of those questions, the hearing resumed and Durham was found guilty. He was sanctioned with fifteen days of detention with credit for time served, ninety days in administrative segregation, sixty days' loss of commutation credits and fifteen days' loss of recreation privileges. The Assistant Superintendent affirmed the finding of guilty and the sanctions, and Durham has appealed to this court.
On appeal, he raises the following contention:
RESPONDENT VIOLATED PROCEDURES AND STANDARDS AND VIOLATED DUE PROCESS AND THE RECORD DOES NOT CONTAIN SUBSTANTIAL CREDIBLE EVIDENCE WHICH SHOWS ANY GUILT TO THIS DISCIPLINARY INFRACTION.
Durham received all the procedural protections to which he was entitled. See Avant v. Clifford, 67 N.J. 496 (1975). He was afforded counsel substitute to assist him in his defense, given the right of confrontation with the nurse who submitted her report of the offense and submitted statements of others in support of his defense.
We note the limited scope of our review in a matter such as this. A final administrative decision, such as this disciplinary adjudication, should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). The agency's findings should be affirmed if they "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole... with due regard also to the agency's expertise...." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (citations omitted).
Durham's contention that the record did not contain sufficient credible evidence to support the adjudication of guilty lacks sufficient merit to warrant discussion in a written opinion because it would lack precedential value. R. 2:11-3(e)(1)(D) and (E).
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