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Francis Smith v. New Jersey Department of Corrections

March 25, 2011

FRANCIS SMITH, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 12, 2011

Before Judges Lihotz and J. N. Harris.

On appeal from a Final Decision of the Department of Corrections.

Appellant Francis Smith, an inmate at East Jersey State Prison, appeals from a final decision of the Department of Corrections (DOC) adjudicating him guilty of prohibited act *.204, use of a prohibited substance. N.J.A.C. 10A:4-4.1(a). Following a hearing on the disciplinary charges, appellant was found guilty and sanctioned 15 days detention, 365 days loss of commutation time, 365 days of administrative segregation, suspended for 60 days, permanent loss of contact visits, 365 day of urine monitoring, and 35 days loss of recreational privileges. The Assistant Superintendent of Corrections affirmed the hearing officer's findings and sanctions.

Appellant raises these issues for review in this appeal:

POINT I

DURING THE TRANSFER OF EVIDENCE, THE CHAIN OF CUSTODY WAS BROKEN AND MADE THE RESULTS OF THE URINE TESTS UNRELIABLE.

POINT II

THE APPELLANT WAS PREJUDICED BY THE SEVEN DAY DELAY IN SERVING HIM NOTICE OF THE DISCIPLINARY INFRACTION AND THIS VIOLATED HIS RIGHT TO DUE PROCESS.

We affirm.

On October 16, 2009, during his confinement at Northern State Prison, appellant was ordered to submit a urine sample to screen for suspected illicit narcotics use. Senior Corrections Officer (SCO) P. Guido supervised appellant's provision of a specimen. Guido closed, sealed and labeled the specimen in appellant's presence and completed Part I of the "Continuity of Evidence" (COE) form, which he and appellant signed at 5:23 p.m. The specimen was transferred to SCO Shakir who received the specimen at 6:10 p.m., as noted on the COE. Shakir placed the container in the evidence refrigerator ten minutes later. On October 19, 2009, the specimen was removed from the refrigerator and transported to the DOC laboratory at 10:30 a.m. Laboratory representative Duall J. Roberts acknowledged receipt of the specimen on October 20, 2009 at 1 p.m. The specimen was checked by Marie Francis of the Confirmation Laboratory. The sample tested positive for opiates. Francis issued a report and delivered the specimen to an independent laboratory operated by the Department of Health and Senior Services at 11 a.m. the next day. By 11:19 a.m. that morning, lab technician Holly Preston had the sample for testing. The specimen was confirmed as positive for opiates and a second report was issued. The prison received the results on October 31, 2009 and appellant was served with the disciplinary charges.

Appellant pled not guilty and requested a counsel substitute. His request was granted. The initial hearing date was postponed pending receipt of a pre-hearing psychological examination, which was conducted "to ascertain [appellant's] mental status, level of responsibility at the time of the charge, competency to participate in a [telephonic] hearing, and the likelihood of decompensation if place[d] in detention[.]" Appellant was found competent to participate.

Appellant requested confrontation of SCO Guido. That request was granted and the hearing was postponed. At a subsequent date, SCO Guido appeared to respond to the written inquiries previously submitted by appellant. Thereafter, appellant was permitted to submit follow-up questions, which also were answered. The hearing officer ...


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