January 18, 2013
JOSE L. GUZMAN, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 January 7, 2013 -
Before Judges Parrillo and Maven.
Appellant Jose L. Guzman appeals from a September 12, 2011 final agency decision of the Department of Corrections (Department) finding him guilty of prohibited acts *.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. The hearing officer (HO) imposed the following sanctions: fifteen days' detention with credit for time served, 180 days' loss of commutation time, 180 days' administrative segregation, 180 days' urine monitoring and loss of contact visit privileges. Following an administrative appeal, the HO's decision and sanction was upheld. We have carefully reviewed the record and conclude that appellant's arguments are without merit. We affirm.
These are the facts adduced from the record. Appellant, presently an inmate of Southern State Correctional Facility, was ordered to submit a urine specimen on August 1, 2011 while at Northern State Prison. After voiding the urine, appellant signed a continuity of evidence form verifying that the urine specimen was closed, sealed and labeled in his presence. On August 4, 2011, the specimen was sent to the Department of Corrections laboratory where it tested positive for opiates. On August 5, 2011, the specimen was sent to the Department of Health and Senior Services (DHSS) laboratory where it again tested positive for opiates. As a result, on September 5, 2011, Lieutenant Soto prepared the disciplinary report setting forth the *.204 charge. On September 7, 2011, Sergeant Whildin served the charge on Appellant, conducted an investigation and referred the charge to an HO for further action.
The disciplinary hearing was held on September 12, 2011, at which appellant was represented by a counsel substitute. Appellant declined the opportunity to name witnesses or confront witnesses. Appellant pled guilty and counsel substitute requested leniency. The HO relied on this guilty plea and the two positive test results for opiates. After reviewing all the evidence, the HO found that appellant had used a prohibited substance and was guilty of disciplinary charge *.204.
Appellant filed an administrative appeal of the HO's decision. On September 15, 2011, the administrator upheld the decision and sanctions. This appeal followed.
On appeal, appellant raises the following issues:
I. APPELLANT NEVER TALKED TO HIS PARALEGAL CONCERNING HIS APPEAL, AND APPELLANT NEVER SIGNED HIS APPEAL ACKNOWLEDGING HIS HELP.
II. THE DEVIATION OF TIME STANDAR[D]S WAS VIOLATED BY DEPARTMENT OF CORRECTIONS, TO DELIVER CHARGE WITHIN 48 H[OURS] OF ALLEGED CHARGE AND HEARING WITHIN SEVEN DAYS.
III. IT WAS TO THE APPELLANT[']S UNDERSTANDING THAT HIS URINE WAS NEGATIVE SINCE HE WAS NEVER PLACED ON PRE[-]HEARING DETENTION AND WAS TRANSFERRED TO SOUTHERN STATE CORRECTIONAL FACILITY.
IV. THE HEARING OFFICER DENIED REQUEST FOR CONFRONTATION, CROSS[-]EXAMINIATION, IN VIOLATION OF [N.J.A.C.] 10A:4-1.
The scope of our review of an agency decision is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [ ] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). When reviewing a determination of the Department in a matter involving prisoner discipline, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995).
Prison disciplinary hearings are not criminal prosecutions, and the full spectrum of rights due to a criminal defendant does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975); see also Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 252 (App. Div. 2010). Prisoners, however, are entitled to certain limited protections prior to being subject to disciplinary sanctions. Williams v. Dep't of Corr., 330 N.J. Super. 197, 202-03 (App. Div. 2000). The procedural due process requirements articulated in Avant were reaffirmed by the New Jersey Supreme Court in McDonald, supra, 139 N.J. at 192, and subsequently codified in N.J.A.C. 10A:4-9.1 to -9.28. These regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald, supra, 139 N.J. at 202.
We turn now to appellant's assertion that the delay between the time he provided a urine sample and the filing of disciplinary charges was a violation of N.J.A.C. 10A:4-9.2. This claim is without merit. Although this provision requires that a "disciplinary report shall be served upon the inmate within 48 hours after the violation" absent exceptional circumstances, the failure to adhere to this strict timeframe does not mandate dismissal of the charges. N.J.A.C. 10A:4-9.2; N.J.A.C. 10A:4-9.9. Rather, the hearing officer may consider whether dismissal is warranted based upon the reason for and length of the delay, and any prejudice the inmate may suffer. Ibid. The record indicates that appellant provided a urine sample on August 1, 2011. The Department conducted its laboratory test and, upon receiving the positive result, secured confirming analysis from DHSS. See N.J.A.C. 10A:3-5.11(d). As a result of the positive drug tests, the disciplinary report was prepared on September 5, 2011, and served on September 7, 2011. The testing results were an essential prerequisite to the initiation of disciplinary charges. Therefore, no delay occurred. We are satisfied that appellant received timely notice of the charges pursuant to N.J.A.C. 10A:4-9.2.
Next, the record before us provides sufficient credible evidence to support agency's contention that the disciplinary proceeding was held in accordance with state regulations. The HO held a prompt initial hearing. See N.J.A.C. 10A:4-9.8. Appellant received a counsel substitute. See N.J.A.C. 10A:4-9.12 to -9.13. The record reflects that appellant was given the opportunity to present evidence in his defense, and to call and confront witnesses, all of which he declined. N.J.A.C. 10A:4-9.13 to -9.14. In finding appellant guilty, the HO based the decision on appellant's guilty plea and two positive laboratory tests. N.J.A.C. 10A:4-9.24. We conclude that the decision was neither arbitrary, capricious nor unreasonable.
Appellant next asserts that the delivery of his urine specimen was contrary to the evidence and law, and that he "never signed said bag or seal acknowledging that it was his urine being sent to a lab untampered with." This contention is contradicted by appellant's clear signature on the "Continuity of Evidence" and "Order to Void Urine Specimen" forms. Appellant also claims that he did not witness the delivery of the urine specimen, yet there is no such requirement under N.J.A.C. 10A:3-5.11(f).
Lastly, appellant contends that counsel substitute did not assist him in his appeal. The record shows, however, that counsel substitute prepared and signed the Appeal of Disciplinary Decision form, along with appellant, and acted on appellant's behalf by requesting leniency and a reduction of sanctions.
The record before us provides sufficient credible evidence to support the finding that appellant committed the offenses for which he was charged and nothing in the record contradicts that critical finding.
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