December 20, 2011
KWESI CLARKE, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections. Kwesi Clarke, appellant pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2011
Before Judges Parrillo and Grall.
This is a prison disciplinary appeal. Kwesi Clarke, an inmate confined at Southern State Correctional Facility, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act .603, possession of gambling paraphernalia, in violation of N.J.A.C. 10A:4-4.1(a). His sanctions, which were reduced on his appeal to the Administrator, are seven days' administrative segregation and sixty days' commutation time. We affirm.
According to the State's proofs, on October 8, 2010, at around 4:45 p.m., an envelope with an anonymous note was found in the Unit 9 corrections officers' bathroom, implicating Clarke and another inmate in a gambling pool, containing "football fantasy" picks with their names on it. A subsequent search of the other inmate's bed area uncovered nothing incriminatory. Clarke's bed area was then searched and inside his footlocker, Senior Corrections Officer (SCO) Karter discovered an envelope addressed to Clarke. On the back of the envelope were the handwritten names of football players and a column listing football teams and what appears to be betting points allocated to each team.
Consequently, Clarke was charged with disciplinary infraction .603 and placed in pre-hearing detention. He was afforded counsel substitute as he requested and a hearing before an impartial tribunal. In his defense, Clarke admitted writing team and player names on the envelope found in his footlocker, but did so only to help him "remember the names of a few of [his] favorite players." He also denied knowing the origin of the fantasy football sheet bearing his name and found inside the envelope on the floor of the officers' bathroom. Clarke was offered and declined the opportunity to call witnesses on his behalf and to confront and cross-examine adverse witnesses.
After considering all the evidence, the hearing officer found Clarke guilty of the .603 charge, having credited the State's account over the inmate's version:
H/O [Hearing Officer] relies on written report by Ofc. Karter stating during a bed search a piece of paper [with] gambling material on it was found in I/M Clarke's cell. This correlates [with] the anonymous note found, refer [to] [Exhibit] A9. I/M admits paper found but state it was for recreation purposes.
On administrative appeal, the guilty finding was affirmed and, as noted, the ten-day detention sanction imposed by the hearing officer was reduced to seven days. The loss of sixty days commutation time was upheld. This appeal follows.
Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980);
Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).
We find no basis to disturb the result in this case, as we are satisfied that the DOC's ultimate determination is sufficiently grounded on substantial credible evidence, see Henry, supra, 81 N.J. at 579-80, and that the administrative adjudication comported with procedural due process. See Jacobs v. Stephens, 139 N.J. 212, 219-20 (1995); McDonald v. Pinchak, 139 N.J. 188, 193-95 (1995).
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