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Jose L. Guzman v. New Jersey Department of Corrections

January 18, 2013

JOSE L. GUZMAN, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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