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Henry Lotero v. New Jersey Department of Corrections


September 18, 2012


On appeal from the New Jersey Department of Corrections.

Per curiam.


Submitted September 11, 2012 -

Before Judges Harris and Hoffman.

Appellant Henry Lotero appeals from a final disciplinary disposition of the Department of Corrections (the Department) that found him guilty of committing prohibited act *.204, "use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff," in violation of N.J.A.C. 10A:4-4.1(a)(*.204). We affirm.


On January 28, 2011, Lotero was an inmate housed at the Garden State Youth Correctional Facility (Garden State) in Yardville. On that date, he provided a urine specimen*fn1 to prison officials that proved, on February 10, 2011, to be positive for the presence of a THC compound found in marijuana.

Lotero was immediately served with disciplinary charges, accusing him of prohibited act *.204. He pled not guilty. The first hearing date was scheduled for February 14, 2010. After being provided a counsel substitute, Lotero declined to confront or cross-examine any witnesses, but testified that he turned himself in to prison officials on January 3, 2011, and had "smoked while on the streets, not while in jail."

The hearing officer considered all of the available evidence and concluded as follows:

Prior to starting the drug program [Lotero] was ordered to void a urine . . . . [T]he urine test tested positive for THC. No evidence to discredit the evidence. All relied on to determine guilt.

Sanctions of fifteen days detention, 180 days of administrative segregation, 180 days loss of commutation time, 180 days urine monitoring, and permanent loss of contact visitation rights were imposed.

Lotero filed an administrative appeal, in which he argued that the hearing officer had misinterpreted the facts:

I was smoking on the street, NOT in jail. I turned myself in on January 3, 2011. I was tested 1/28/11. I was still dirty from the streets. They found small amounts anyway, by now I should be clean.

The Assistant Administrator of Garden State upheld the hearing officer's determination explaining, "[t]he timeframe you cite is enough for any street use of drugs to have passed out of your system." This appeal followed.

Lotero repeats his previous arguments on appeal, adding that his "entire time out on bail [he] was smoking marijuana at least once a day. It takes [thirty to forty-five] days for the THC in your system to be completely flushed." The balance of Lotero's appellate argument includes the proposition that prison officials "just assumed that [he] was smoking marijuana in their facility without giving [him] a chance." We have reviewed all of Lotero's appellate contentions, and are satisfied that they are unpersuasive.


Our scope of review is limited, and Lotero's contentions must be analyzed in accordance with that standard. In re Stallworth, 208 N.J. 182, 194 (2011); Moore v. Dep't of Corr., 335 N.J. Super. 103, 110 (App. Div. 2000). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, supra, 208 N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The burden is on Lotero to demonstrate grounds for reversal. See Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

After an assessment of the record, we conclude that Lotero received all of the substantive and procedural due process to which he was entitled under the principles of McDonald v. Pinchak, 139 N.J. 188 (1995) and Avant v. Clifford, 67 N.J. 496 (1975). The record is bereft of evidence to support Lotero's defense that the drug testing detection time allotted by the Department was insufficient to provide fair and accurate results. He has offered no scientific evidence or alternate testing protocol that would require a longer waiting period to ensure that the illicit substance was not ingested while incarcerated.

Ultimately, we conclude that the final administrative decision was not arbitrary, capricious, or unreasonable given the facts presented, and the decision is supported by substantial credible evidence in the record as a whole. The sanctions that were imposed for prohibited act *.204 are unexceptionable. See N.J.A.C. 10A:4-4.1(a) ("Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions.").


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