On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 13, 2011
Before Judges Axelrad and Lihotz.
Leroy McLauren appeals from a final determination of the Department of Corrections (DOC), adjudicating him guilty of prohibited act .009, misuse or possession of an electronic communications device, a cellular telephone. See N.J.A.C. 10A:4-4.1(a). The hearing officer imposed sanctions of 15 days detention, 300 days administrative segregation, 300 days loss of commutation time,*fn1 confiscation of the phone and loss of phone privileges for 180 days. Following an administrative appeal, an associate administrator of the DOC upheld the decision of the hearing officer as to the adjudication of guilt and sanctions, save suspending the 300 days administrative segregation for 365 days. Appellant then filed an appeal of the agency's decision.
On March 19, 2010, Senior Corrections Officer (SCO) Frank Melendez found a cellular phone on the bunk of appellant's cellmate, Darrin Bivins. SCO Melendez charged appellant with prohibited act .009.*fn2 Appellant was removed from the prison later that day and transported to a county facility for a court date, where he remained until March 24, 2010. On March 25, 2010, Sergeant S. Davis conducted an investigation of the alleged infraction and provided defendant with a copy of the disciplinary report. Appellant declined to make a statement at that time or to identify any witnesses. He requested and was assigned counsel substitute for the matter.
On March 29, 2010, a disciplinary hearing was held at which appellant was represented by counsel substitute. The adjudication report reflects that in lieu of a statement, appellant deferred to his counsel substitute, who entered a guilty plea on his behalf. Counsel substitute represented that the phone was appellant's, not Bivins', and requested leniency.
The hearing officer found no violation of due process in the service of the charge on appellant when he was returned to the prison from the county jail, and an adequate basis in the record for the adjudication of guilt, noted the charge was "serious in nature," and imposed the aforementioned sanctions. The adjudication report reflects it was reviewed by counsel substitute who acknowledged the report accurately reflected what took place at the disciplinary hearing.
Appellant filed an administrative appeal, arguing a violation of due process by the service of the disciplinary report on him outside of the forty-eight hour charge notification period required by N.J.A.C. 10A:4-9.2, and thus requested the finding of guilt and sanctions be rescinded. Alternatively, appellant sought leniency, requesting the administrative segregation time and other sanctions be suspended for a period of sixty days. As previously stated, after review of the appeal, the DOC administrator upheld the adjudication and slightly modified the sanctions. This appeal ensued.
Appellant made the following arguments on appeal: (1) we should consider his lately asserted challenges "in the interest of justice"; (2) the investigating officer was biased; (3) the hearing officer violated his due process rights when she conducted the hearing in absentia; (4) the finding of guilt was not based on substantial credible evidence in the record; (5) he was denied effective assistance of competent counsel; and (6) the DOC's suspension of his administrative segregation time for a period of 365 days was excessive and contrary to administrative regulations. Appellant submitted an affidavit asserting he was denied participation in the disciplinary hearing and administrative process. In response, the DOC sought a remand to obtain information regarding appellant's presence at the disciplinary hearing. Appellant opposed the motion, suggesting he was abandoning his claim of denial of participation in the administrative proceedings. Accordingly, by order of November 30, 2010, we denied the DOC's motion for remand, citing appellant's abandonment of his due process claim and limiting his appeal to the substantive challenge that the DOC's findings were not supported by substantial credible evidence.
We thus limit our review and analysis to the fourth point set forth on appeal. Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or is unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (holding the court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).
In this case, the hearing officer based her decision not only on appellant's admission of guilt but on the reports that undisputedly reflected the presence of a cellular phone in the bed area of appellant's cell during a search. Although the officers could not conclude at the time of seizure whether the phone belonged to appellant or to his cellmate, appellant has provided no basis to dispute that he authorized his counsel substitute to expressly acknowledge the phone was appellant's and not his cellmate's, and to request leniency from the hearing officer. We particularly note that appellant's memorandum to the DOC appeal administrator explaining his reasons for appeal did not in any manner retract the guilty plea or question the authority of his counsel substitute to make such incriminating statement on appellant's behalf. Thus, as there is substantial, credible evidence in the record to support the agency's adjudication of guilt of the prohibited act .009, there is no basis to disturb that determination.