April 4, 2012
PHILLIP PALMER, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2012 -
Before Judges Grall and Hoffman.
Appellant Phillip Palmer, a prison inmate, appeals from a final agency decision of the Department of Corrections (DOC) imposing disciplinary sanctions. For the reasons that follow, we affirm.
On September 23, 2010, correction officers at Northern State Prison received information there was contraband in a cell occupied by appellant and fellow prisoner Jose Andujar. Before searching the cell, the officers ordered appellant and Andujar to place their hands outside the cell's food port to be handcuffed. Instead of complying, both inmates ran to retrieve cell phones and flush them down the toilet. Both inmates were maced and subdued before they could do so. After the inmates were removed, a search of the cell produced five cell phones, one cell phone charger, two homemade tobacco pipes, and a plastic bag containing an unknown substance.
Appellant was charged with five counts of *.009, possession of a prohibited electronic communication device; one count of *.204, use of a prohibited substance; and one count of *.306, disruptive conduct. N.J.A.C. 10A:4-4.1. Appellant pled not guilty to all charges, and requested and received the assistance of a counsel substitute. At a hearing on September 28, 2010, appellant was found guilty of all five *.009 charges. The hearing officer imposed the following sanctions for each of the charges: 365 days' administrative segregation, 365 days' loss of commutation time, 365 days' loss of telephone time, and permanent loss of contact visits. In addition, on two of the five *.009 charges, appellant was sanctioned to fifteen days' detention. Each of these sanctions were to be served consecutively. Because the lab results for the unknown substance were not available at the time of the hearing, the *.204 charge was continued. The *.306 charge, which was not addressed at this hearing, was later dismissed.
After the lab test results were returned, the hearing officer amended the *.204 charge to a .210 charge, possession of an unauthorized item, for the two homemade pipes. On October 6, 2010, appellant pled guilty to the amended charge and received the following sanctions: fifteen days' detention, ninety days' administrative segregation, and sixty days' loss of commutation time.
Appellant filed an administrative appeal contesting the determination of guilt on the *.009 charges and the sanctions imposed. In a decision dated November 24, 2010, Assistant Superintendent Valerie Smith affirmed the guilty determinations for the five *.009 charges, and modified the sanctions for each charge. The final sanctions issued were as follows: 365 days' administrative segregation for each of four charges (consecutive); 365 days' loss of commutation time for each of four charges (consecutive); and 365 days' loss of phone privileges for one charge. No sanctions were imposed on the fifth *.009 charge.*fn1
This appeal followed. On appeal, Palmer argues the final agency decision was not based on substantial evidence in the record. Appellant also asserts he was denied the opportunity to present witnesses, in violation of N.J.A.C. 10A:4-9.13, and that his counsel substitute was ineffective.
Our role in reviewing the decision of an administrative agency is limited. Decisions of administrative agencies carry with them a presumption of reasonableness. Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983 (1980). We reverse an agency's decision only where it is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); In re Musick, 143 N.J. 206, 216 (1996).
Appellant's arguments on appeal focus primarily on the five *.009 charges relating to possession of the cell phones.
Appellant's cellmate, Andujar, pled guilty to possession of the five cell phones before appellant's hearing. Based upon Andujar's guilty plea, appellant claims he should have been exonerated of the *.009 charges because Andujar accepted responsibility for the offense by admitting the cell phones were in his possession. The hearing officer considered and rejected this argument, determining that Andujar's guilty plea did not preclude a finding of joint possession of the contraband. When their cell was about to be searched, both inmates tried to destroy the evidence.
An adjudication of guilt of a disciplinary charge must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). Substantial evidence has been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). This standard permits an agency to apply its expertise where the evidence supports more than one conclusion. Stated otherwise, "[w]here there is substantial evidence in the record to support more than one result, it is the agency's choice which governs." De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985).
Notwithstanding Andujar's guilty plea, appellant's attempt to flush the cell phones down the toilet constitutes substantial, credible evidence to support the hearing officer's conclusion that the cell phones were subject to appellant's control and therefore in his possession.
Appellant also relies on Figueroa v. New Jersey Dep't of Corr., 414 N.J. Super. 186 (App. Div. 2010), to support his claim that the record did not contain sufficient evidence to support a finding that he was in possession of the cell phones. In Figueroa, an inmate received what he believed to be a pack of tobacco, but which actually contained marijuana. He was convicted of committing prohibited act *.203, attempting to possess a prohibited substance. On appeal, his conviction was reversed based on the following analysis:
Although the term "possession" is not contained in the definitional sections of the administrative code governing inmate discipline, N.J.A.C. 10A:1-2.2 and N.J.A.C. 10A:4-1.3, we are satisfied that in the context of prohibited act *.203, we should construe the term as the Court defined it for the purpose of imposing criminal liability under statutes charging individuals with possession of controlled dangerous substances, that is, "[p]ossession signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character." State v. Pena, 178 N.J. 297, 305 (2004). Thus, an inmate cannot be found guilty of possession of a prohibited drug "unless [there is sufficient proof] that he knew or was aware, at a minimum, that he possessed [the drug]." Ibid.
[Figueroa, supra, 414 N.J. Super. at 192 (emphasis omitted).]
Here, possession of a cell phone does not have a criminal equivalent outside of the disciplinary context. Unlike the inmate in Figueroa, who contended he was unaware that the pack of tobacco contained marijuana, appellant does not dispute that he was fully aware of the illicit nature of the cell phones. Figueroa thus has no application to this appeal.
As for appellant's claims that he was denied the opportunity to present witnesses and that his counsel substitute was ineffective, the record fails to provide support for these contentions. To the contrary, the record clearly establishes that the hearing officer gave appellant the opportunity to name witnesses and that appellant declined to do so.
Appellant has not established that the agency's decision was arbitrary, capricious, or unsupported by credible evidence in the record. See Henry, supra, 81 N.J. at 579-80. Further, we are satisfied appellant was afforded all due process to which he was entitled. See Avant v. Clifford, 67 N.J. 496, 521-22 (1975). Accordingly, there is no basis to disturb the final agency decision of November 24, 2010.
Appellant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).