On appeal from a Final Agency Decision of the Department of Corrections.
The opinion of the court was delivered by: Gilroy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
Appellant Christopher Figueroa appeals from the February 17, 2009 final decision of the New Jersey Department of Corrections (DOC) that found him guilty of committing prohibited act *.803/*.203 (attempting to commit possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff), in violation of N.J.A.C. 10A:4-4.1(a). The issue on appeal is whether the DOC presented sufficient evidence to meet its burden of persuasion to sustain its charge that appellant committed the prohibited act. Because the DOC failed to prove appellant knew the item he was attempting to possess contained a prohibited substance under the regulation, we reverse.
On February 3, 2009, while an inmate at the East Jersey State Prison, appellant asked Senior Corrections Officer W. Washington if appellant could obtain a pack of Bugler*fn1 tobacco from inmate Cristian Veguilla who was incarcerated in a different cell than appellant. Washington advised appellant that he would obtain the tobacco for him. On obtaining the tobacco from Veguilla, Washington inspected the pack and found a rolled-up cigarette containing a green, leafy substance, which later tested positive for marijuana. On finding the marijuana, another corrections officer requested appellant submit to a urine test. Appellant advised the officer that he would provide the specimen, but wanted to first talk to a superior corrections officer.
On February 4, 2009, the DOC charged inmate Veguilla with prohibited act *.203 (possession or introduction of any prohibited substances... not prescribed for the inmate by the medical or dental staff); and charged defendant with prohibited acts *.803/*.203 and *.258 (refusing to submit to testing for prohibited substances).
At the disciplinary hearing, appellant pled not guilty and received assistance of counsel substitute, N.J.A.C. 10A:4-9.12(a). Appellant acknowledged that he had requested tobacco from Veguilla, and that Veguilla had told him to stop by after dinner and he would give it to him. Appellant denied knowing that the pack of tobacco given to Washington on his behalf contained marijuana. In a two-page written statement, Veguilla confirmed appellant's version of events. In so doing, Veguilla admitted to possessing the marijuana and asserted that he had "mistakenly grabbed the buglers that [he] had stashed [his] marijuana in" when asked for the tobacco by Washington.
The hearing officer found appellant not guilty of prohibited act *.258 but guilty of prohibited act *.803/*.203.
In finding appellant guilty, the hearing officer provided the following statement of reasons:
Figueroa is charged with attempting to obtain marijuana and denies guilt. While the other inmate takes responsibility, Figueroa did attempt to get the bugl[e]rs from Veguilla. This is a common occurrence, and he could reasonably expect to be able to accomplish this without a search that would reveal the drugs. In addition, drugs are difficult to get into the institution, and it is not reasonable to expect Veguilla would accidentally give away drugs. Figueroa also resisted providing a urine specimen following this incident. There is substantial evidence of guilt, as Figueroa requested a package which did have drugs in it.
The hearing officer sanctioned appellant to fifteen days of detention, with credit for time served; ninety days of administrative segregation, suspended for sixty days; 180 days loss of commutation time; permanent loss of contact visits; and 365 days of urine monitoring. On February 11, 2009, appellant administratively appealed the decision. On February 17, 2009, Assistant Superintendent Robert LaForgia affirmed. N.J.A.C. 10A:4-11.5(a)5. On appeal, appellant argues that the hearing officer's finding of guilt was not supported by substantial evidence. We agree.
Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). We will not disturb the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that is, 1) "the agency's action violates expressed or implied legislative policies"; 2) "the record [does not] contain substantial evidence to support the findings on which the agency based its action"; and 3) "in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Circus Liquors, supra, 199 N.J. at 10 (quoting ...