April 5, 2011
MARIO DISABATINO, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 March 15, 2011
Before Judges Parrillo and Espinosa.
Appellant, Mario DiSabatino, an inmate at Northern State Prison, appeals from a final decision of the Department of Corrections (the Department) that found him guilty of committing prohibited act *.204, use of a prohibited substance, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
After being ordered to provide a urine specimen for the therapeutic community, appellant provided the specimen on December 25, 2009. The specimen was sent to the Department's laboratory for analysis and was found to test positive for THC. A second analysis was performed on the specimen by the Department of Health and Senior Services on December 31, 2009, resulting in a second positive result.
The disciplinary charge was delivered to appellant on January 9, 2010, and referred for a hearing. Appellant pled not guilty.
At the disciplinary hearing on January 14, 2010, appellant requested and was granted the assistance of counsel substitute. Appellant did not choose to make a statement. His counsel substitute asked the hearing officer to note that appellant had "a PDS [parole date set] of 3/1/10 to an outside state (FL)." After reviewing the evidence, which included two positive drug tests, the hearing officer found appellant guilty of committing prohibited act *.204, use of a prohibited substance. The hearing officer recommended sanctions of 180 days urine monitoring, 90 days loss of commutation time, and 365 days loss of contact visits.
Appellant filed an administrative appeal from the hearing officer's decision. The hearing officer's decision regarding appellant's guilt of the charge was upheld by the Associate Administrator on January 22, 2010. The recommendation that appellant lose 90 days of commutation time was approved by the Administrator on February 9, 2010.
Appellant raises a number of arguments for our consideration in this appeal. He challenges the procedures followed in handling the urine specimen; that he was held in pretrial detention for five days without a hearing; that he did not receive a hearing within seven days of the violation; that he was charged a second time for the same incident after the second lab result was received; that the disciplinary report was not served upon him within 48 hours of the violation; that he was not advised of "immunity rights" or his right to appeal; and that he was not asked during the procedure if he wished to rebut the evidence. We have considered each of these arguments and conclude that none of them has any merit.
Our review of the Department's decision is limited. We will only reverse when the agency's decision is 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); Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001).
An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33.
In upholding the hearing officer's decision, the Associate Administrator noted there had been "compliance with the N.J.A.C. Title 10A on inmate disciplinary [hearings] which prescribes procedural safeguards." The record shows that appellant was provided with a counsel substitute and advised of use immunity for criminal proceedings by the hearing officer. Appellant did not identify any witnesses he wanted to present on his behalf and has not identified anyone whose testimony he was barred from presenting. Additionally, he has not identified anyone whose testimony his counsel substitute was unable to cross-examine.
The second charge for the same incident was dismissed. The record also shows he was provided with a written statement of the evidence relied upon and, obviously, he has filed an appeal. As for the timing of the notice and the hearing, the record shows the delay was attributable to the time needed to obtain both lab results. Moreover, N.J.A.C. 10A:4-9.9(a) explicitly states, "The failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." Thus, the record shows that the disciplinary process here did not violate appellant's due process rights.
Appellant also appears to attack the sufficiency of the evidence, arguing that the evidence presented was hearsay and that an expert report was necessary to substantiate the charge against him. We disagree. The urine specimen provided by appellant was tested by the Department laboratory and the Public Health Laboratory Services of the Department of Health and Senior Services. In addition to the reports provided by the laboratories, there was also a record of the chain of custody. The evidence was plainly sufficient to support the conclusion that appellant committed the disciplinary offense charged.
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