On appeal from a Final Determination of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2010
Before Judges Sabatino and Ashrafi.
Inmate Ruperto Jimenez appeals sanctions imposed upon him by the Department of Corrections (DOC) for possession of a weapon, sharpened instrument, or an unauthorized tool. We affirm.
On June 3, 2009, Jimenez was confined at the Southern State Correctional Facility, minimum unit camp. On the morning of that date, he was working in a welding shop when an auto body shop teacher saw him at a grinder honing to a point a metal object. When Jimenez noticed that the teacher had observed him, he put the object in a box near the grinder and walked away. The auto body teacher reported his observation to the welding shop teacher and a corrections officer. The object was retrieved from the box. It was a three and a half inch piece of metal that had been sharpened to a point.
The following day, a disciplinary report was served upon Jimenez charging violation of disciplinary infraction *.202, possession of a weapon, such as but not limited to a sharpened instrument or unauthorized tool, in violation of N.J.A.C. 10A:4-4.1. At his first appearance before a hearing officer on June 4, 2009, Jimenez pleaded not guilty and a counsel substitute was appointed at his request to assist in his defense. After consultation with Jimenez, the counsel substitute waived the right to have twenty-four-hour notice before a disciplinary hearing was held and proceeded immediately with the hearing. A photocopy of the confiscated metal object was admitted in evidence as well as the statements of the two shop teachers and the corrections officer who had instituted the charge but had not personally witnessed the incident.
Jimenez did not deny that he had possessed the item, but he testified that it was not a weapon. Jimenez said he was sharpening the item so that he could mark his initials for identification into his metal shop project. He said that marking the projects in that way was a common practice of inmates in the welding shop.
The hearing officer found Jimenez guilty of the infraction. In the adjudication report, the hearing officer wrote that the inmate had not denied possessing the item and honing it to a point. He discredited the explanation Jimenez gave for possessing and sharpening the instrument. The hearing officer sentenced Jimenez to fifteen days' detention, 365 days' administrative segregation, and 365 days' loss of commutation time.
On administrative appeal filed on behalf of Jimenez by his counsel substitute, the decision of the hearing officer was upheld by prison administration.
Before us, Jimenez contends that his conviction was not based on substantial evidence of his knowing possession of a weapon and he was denied due process because the hearing officer denied his right to confront the witnesses against him and to call witnesses in support of his defense.
Our scope of review of prison disciplinary matters is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We will defer to the agency's conclusions so long as the decision is not arbitrary or capricious and is supported by substantial credible evidence. Id. at 579-80. In particular, we defer to matters that lie within the special competence and expertise of an administrative agency. Brady v. Dep't of Pers., 149 N.J. 244, 256-57 (1997). "We cannot 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).
The regulation charged does not require proof that the inmate actually intended to use the prohibited item as a weapon. Possession in itself of an item that is a sharpened instrument or an unauthorized tool is a violation. Jimenez does not dispute that he possessed the sharpened metal object seized from the box near the grinder where he put it. The evidence before the hearing officer was clearly sufficient to find a violation of disciplinary infraction *.202.
As to denial of the inmate's due process rights, as required by Avant v. Clifford, 67 N.J. 496, 525-39 (1975), Jimenez argues on appeal that he sought to confront the witnesses against him and to call other witnesses, but there is no indication of those requests on the record of his disciplinary hearing. The counsel substitute signed the adjudication report attesting to the accuracy of the information contained in the record of the proceedings, including the markings "N/A," ...