January 3, 2011
KEVIN ARCHIE, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 1, 2010 - Decided: Before Judges Cuff and Fasciale.
Kevin Archie appeals from an October 26, 2009 order of the Department of Corrections (DOC) denying his request for leniency and upholding a hearing officer's decision that Archie engaged in a prohibited act in violation of N.J.A.C. 10A:4-41(a). We affirm.
Archie is currently an inmate at Bayside State Prison (BSP). On October 22, 2009, while Archie was receiving medical treatment at the Ancora unit of BSP, Senior Corrections Officer Dutra (Officer Dutra) discovered three keep-on-person (KOP) medication cards located in a trash can of a common area bathroom. The cards contained unused tablets. Officer Dutra seized the cards and learned that they belonged to Archie. The DOC charged Archie with violating section *.205 of N.J.A.C. 10A:4-4.1, which provides in part: (a) An inmate who commits one or more of the following numbered prohibited acts shall be subject to disciplinary action and a sanction that is imposed by a Disciplinary Hearing Officer or Adjustment Committee with the exception of those violations disposed of by way of an on-the-spot correction[:] *.205 misuse of authorized medication.
On October 23, 2009, the DOC notified Archie of the disciplinary charge. Archie did not provide a statement or request that witnesses be interviewed during the investigation.
On October 26, 2009, a hearing officer conducted a hearing and Archie used the assistance of substitute counsel. Archie called no witnesses, declined to cross-examine witnesses, pled not guilty, and stated:
I was trying to do this right thing. I only been here less [than] 30 days [and] this proceeding [is] different from Bayside. When I took my noon pills back to my room I realized [that] I was over my limit and I didn't want to get in trouble so I put them in the trash. I didn't know you had to turn in your old medication.
Archie requested leniency and suggested that the charge be modified from *.205 to .709, failure to comply with a written rule or regulation of the prison facility. That day, the hearing officer found Archie guilty and stated:
[Archie] pled not guilty, but is found guilty. The charge indicates that [Archie] put his pills in the trash where policy require[s] that they be returned to medical. [Archie] admitted that he put the pills in the trash.
[Archie] needs to rethink the importance of all things drug related in a jail. DHO considered changing [the] charge to 709 but 205 misuse of meds is more appropriate.
Leniency granted for [Archie's] record.
The hearing officer sanctioned Archie to ten days detention with credit for time served, sixty days loss of commutation time, a suspended ninety day period of administrative segregation, and referral for custody status review.
Archie appealed from the hearing officer's decision and requested leniency. Archie raised no other arguments in his appeal to the DOC, apologized for his bad judgment, and was remorseful. The next day the DOC upheld the hearing officer's decision and refused to grant leniency.
On appeal, Archie argues that (1) he was not adequately notified of his obligation to keep KOP medication on his person; (2) the adjudication was not based on substantial evidence; (3) his substitute counsel was incompetent; (4) the DOC erred by charging him with a *.205 charge rather than a .709; and (5) his medication expired.
Our review of a DOC decision is limited. We will only reverse when the agency's decision is found to be arbitrary, capricious, or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (a reviewing court shall uphold an agency's findings, even if it would have reached a different result, as long as sufficient credible evidence in the record exists to support the agency's conclusions).
In a disciplinary proceeding an incarcerated inmate is not entitled to the full range of rights as that enjoyed by a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). "[P]risoners' rights 'are abridged to the extent necessary to accommodate the institutional needs and objectives of prisons.'" Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 252 (App. Div. 2010) (quoting McDonald v. Pinchak, 139 N.J. 188, 194 (1995)).
An inmate is entitled to (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal; (3) a limited right to call witnesses and present documentary evidence; (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; and (6) where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Avant, supra, 67 N.J. at 525-33. Each of these rights was provided to Archie and we detect no diminution of his opportunity to defend the charge to the full extent permitted by our law.
Archie received notice of the charge at least twenty-four hours prior to the hearing; declined to call and cross-examine witnesses; testified; and was given substitute counsel. An impartial hearing officer conducted the disciplinary hearing and issued a written statement of the evidence relied on and the reasons for the sanctions imposed. Thus, Archie received the procedural due process to which he is entitled.
Archie's adjudication of guilt was based on substantial evidence. As noted in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." The phrase has also been described as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002).
Officer Dutra found Archie's KOP three medication cards containing unused tablets in the trash can. Archie admitted that he threw the cards there to avoid getting in trouble. There was substantial, credible evidence to support the DOC's decision not to grant leniency to Archie, and to uphold the hearing officer's decision.
Finally, Archie's only argument on his appeal to the DOC was a plea of leniency. As a result, we decline to consider his remaining arguments because they were not raised below and no exception applies. State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Krause, 399 N.J. Super. 579, 583 (App. Div. 2008). Affirmed.
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