On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2010 - Decided
Before Judges Carchman and Graves.
Appellant Randy Crawford, an inmate at East Jersey State Prison, appeals from a final decision of the Department of Corrections (DOC), finding him guilty of two counts of prohibited act *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate.
N.J.A.C. 10A:4-4.1(a). As a result of appellant's conviction, the hearing officer sanctioned appellant to consecutive terms of 15 days detention on each count with a credit for time served, 365 days of administrative segregation on each count, 365 days loss of commutation time on each count, together with permanent loss of contact visits, a referral to the prosecutor's office, confiscation of the phones, and one year of loss of phone privileges. Appellant appeals. We remand to the DOC for findings as to the credibility of a statement offered by appellant's cellmate.
These are the relevant facts. On June 2, 2009, during a search of Crawford's double occupancy cell, Senior Corrections Officer Egan located a Pantech cellular telephone and a Motorola cellular telephone, along with their respective chargers, inside a word processor. Crawford's inmate number was etched and printed on the cover of the word processor. The cellular telephones and chargers were confiscated and placed in the Special Investigations Division evidence locker.
Crawford was charged with two *.009 disciplinary infractions, one for each cellular telephone and corresponding charger found inside his word processor.*fn1 Sergeant Erven investigated the disciplinary charges and referred them for a disciplinary hearing. On June 5, 2009, disciplinary hearing Officer McGovern found Crawford guilty of both *.009 charges.
During the pendency of these charges, appellant's cellmate, Jabbar Spears, signed a statement in which he said:
I Jabbar Spears secretly hid a cellphone inside of inmate Randy Crawford #249939 type writer, without him having knowledge of me doing so. Inmate Randy Crawford never knew I had the 3 phones. Cause one phone I use to hide in my jock athletic supporter. s/ Jabbar Spears #278138/801415B Following his initial adjudication, appellant filed an administrative appeal. The associate administrator rescinded the decision of the hearing officer and ordered a new hearing. She added:
A new hearing is ordered to provide appellant the opportunity to present evidence not considered at the initial hearing. Request for polygraph is denied at this time as issues of credibility can be addressed at the hearing.
At the subsequent hearing, the Spears statement was presented to the hearing officer. Following the hearing, appellant was again found guilty. In his summary of the evidence, the hearing officer noted the Spears statement but made no determination as to the credibility of the statement and its impact upon the defenses raised. Appellant filed an unsuccessful administrative appeal, and this appeal followed.
Our standard of review of agency decisions is well-settled. Unless a court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling will not be disturbed. In re Carter, 191 N.J. 474, 482 (2007); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); In re Martinez, 403 N.J. Super. 58, 75 (App. Div. 2008). We will give deference to such decision, unless it is not only arbitrary and capricious but unsupported by substantial credible evidence in the record as a whole. Carter, supra, 191 N.J. at 482; In re Distribution of Liquid Assets, 168 N.J. 1, 10-11 (2001). Accordingly, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
It is not our function "'to substitute [our] independent judgment for that of [an] administrative' agency," such as the Department, "'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (alteration in original) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the ...