March 25, 2011
FRANCIS SMITH, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
DURING THE TRANSFER OF EVIDENCE, THE CHAIN OF CUSTODY WAS BROKEN AND MADE THE RESULTS OF THE URINE TESTS UNRELIABLE.
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.
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 reviewed the DOC reports, the COE and the lab reports, and determined appellant was guilty.
In his administrative appeal, appellant asserted the DOC failed to comply with N.J.A.C. 10A:3-5.9 to 5.11. The Assistant Superintendent rejected this contention and affirmed the hearing officer's determination.
Our review of agency action is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We will defer to the agency's conclusions, particularly to matters that lie within the special competence and expertise of the 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). Accordingly, we reverse "only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry, supra, 81 N.J. at 579-80). See also N.J.A.C. 10A:4-9.15(a) (requiring any "finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act"). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In Re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quotations and citations omitted).
Appellant first argues defects occurred in the chain of custody of the specimen and SCO Guido mishandled the specimen. Appellant suggests the sample "was placed in a communal storage area with other specimens[,]" which caused "confusion, cross-contamination and mislabeling." These facts are unsupported and are rejected.
As the statement of facts reveal, the COE was dated and signed at each stage of the specimen's handling by each individual involved in its processing. SCO Guido's testimony reinforced his handling and transfer of the specimen comported with all protocols required by N.J.A.C. 10A:3-5.11(e) through (j). There is no basis presented by appellant to challenge the validity of the lab results.
The record before us provides sufficient credible evidence to support the hearing officer's findings as affirmed by the Assistant Superintendent. The evidence presented to the hearing officer supported the finding that appellant violated prohibited act *.204.
Appellant next claims prejudice resulting from the delay between the laboratory's written confirmation of a positive sample on October 23, 2009 and the date he was formally charged with the infraction. The claim is without merit.
Although N.J.A.C. 10A:4-9.2 requires that a "disciplinary report shall be served upon the inmate within 48 hours after the violation" absent exceptional circumstances, the failure to adhere to this strict timeframe does not mandate dismissal of the charges. N.J.A.C. 10A:4-9.9. Rather, the hearing officer may consider whether dismissal is warranted based upon the reason for and length of the delay, and any prejudice the inmate may suffer.
The lab test results were time stamped received by the corrections facility on October 31, 2009 -- the same date the charges were issued. The testing results were an essential prerequisite to the initiation of disciplinary charges. Therefore, no delay occurred.
Moreover, appellant was given ample opportunity to respond to the charges and confront witnesses. He never raised any issue regarding the timeliness of the charges or asserted that delay hampered his presentation. Even now, he fails to explain the nature of the claimed prejudice, suggesting only that he had difficulty deciphering the hearing officer's notes.
Following our review, we find no abuse by the DOC. Accordingly, there exists no basis to interfere with its disciplinary determination.
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