May 22, 2012
KEVIN CUNNINGHAM, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 May 7, 2012 -
Before Judges Grall and Alvarez.
Kevin Cunningham, an inmate confined at the Adult Diagnostic and Treatment Center, appeals from a final decision of the Department of Corrections (Department) finding him guilty of a prohibited act, specifically *.705, "commencing or operating a business . . . for profit without approval of the Administrator," N.J.A.C. 10A:4-4.1(a), and imposing fifteen days' detention and ninety days' administrative segregation. The hearing officer dismissed a second charge alleging conduct proscribed as prohibited act .305, "lying, providing a false statement to a staff member."
On September 27, 2009, in response to a report that Cunningham was running a store, Sergeant Mendez searched his cell and found sheets of paper, a composition notebook and folders. The materials included inmates' names with dollar amounts adjacent to them and notations about goods, such as peanut butter, candy and tobacco. Cunningham admitted that he had loaned goods to inmates expecting to be paid at a later date.
The following day, a copy of the charge was delivered to Cunningham and he signed it. The form includes a recitation of prohibited act *.705 as defined by the regulation. Cunningham's request for substitute counsel was granted, and the defense was given copies of the evidential documents and the investigatory reports. Cunningham asked to present two witnesses, and the hearing was adjourned to accommodate that request. Both witnesses, however, submitted statements denying any knowledge. The defense presented a document explaining the significance of Cunningham's notations and the operation. In his words, "[t]hey borrow 1 and they pay back 2 bag[s]." Cunningham declined to make a statement at the hearing but asserted, through substitute counsel, that he had stopped running his business and forgotten to throw out the paperwork.
The hearing officer determined the charge was supported by the evidence. In imposing the sanctions, the hearing officer considered that Cunningham had not been charged with a violation for over a year but also found that his behavior was of a sort that could lead to fights, threats and assaults.
On appeal Cunningham argues:
I. THE APPELLANT REQUESTED THAT THE H.O. TAKE INTO CONSIDERATION THE LACK OF EVIDENCE THAT HE WAS RUNNING A STORE.
II. THE APPELLANT COULD NOT BRING INMATE WITNESSES FORTH TO PROVE THAT HE WAS NOT RUNNING A STORE NOW BECAUSE [THEY] WOULD HAVE TO INCRIMINATE THEMSELVES AS THEY WOULD HAVE IMPLICATED THEMSELVES IN THE APPELLANT'S ONE TIME BUSINESS, A BUSINESS WHICH IS AGAINST INSTITUTIONAL POLICY.
III. THE DISCIPLINARY ACTION SHOULD HAVE BEEN INDIVIDUALIZED.
IV. THE ADMINISTRATOR IS NOT ALLOWED TO RUBBER STAMP THE FINDINGS OF THE D.H.O. WITHOUT MAKING FINDINGS OF HIS OWN.
We have considered the arguments presented in light of the record and concluded that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Because the decision of the administrative agency is supported by sufficient credible evidence on the record as a whole, and because the penalty is within the range authorized for this prohibited act and not arbitrary, we affirm. R. 2:11-3(e)(1)(D); see Figueroa v. New Jersey Dept. of Corrections, 414 N.J. Super. 186, 190-91 (App. Div. 2010) (discussing our limited standard of review in the context of the Department's decisions involving inmate discipline).
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