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Honan v. New Jersey Department of Corrections

Superior Court of New Jersey, Appellate Division

June 20, 2013

KERRY HONAN, Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2013

On appeal from the New Jersey Department of Corrections.

Kelly Honan, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

Before Judges Parrillo and Sabatino.

PER CURIAM

This is a prison disciplinary appeal. Kerry Honan, an inmate currently confined at East Jersey State Prison, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.204 — use of a prohibited substance – in violation of N.J.A.C. 10A:4-4.1(a) – and imposing discipline on him. We affirm.

On February 28, 2012, Honan provided a urine specimen that tested positive for morphine during the initial on-site test. The New Jersey Department of Health Laboratory confirmed that the specimen tested positive for opiates.

At the initial hearing on March 16, 2012, Honan pled guilty to the *.204 charge and admitted taking drugs, but through counsel substitute, argued his due process rights were violated because there was no "probable cause" for the urine analysis, i.e., the K-9 and BOSS chair frisks yielded negative results. Consequently, the hearing officer postponed the hearing for clarification of the "reasonable factual basis" for ordering urine analysis.

The hearing resumed on March 27, 2012, at which time the State produced a March 21, 2012 report of Major Robert Yacubovich stating that his order for a urine analysis was "based on a request by SID [Special Investigation Division] for an ongoing investigation." At the conclusion of the hearing, Honan was adjudicated guilty of the *.204 charge and sanctioned to fifteen days' detention, suspended for sixty days; thirty days' loss of recreation privileges; permanent loss of contact visits and 365 days' random urine monitoring.

Honan filed a timely administrative appeal and on April 4, 2012, the Assistant Superintendent rescinded the decision of the hearing officer and ordered a new hearing. Honan again pled guilty, admitting to using drugs. At the hearing, the hearing officer accepted and relied upon a confidential report from Senior SID Investigator Christopher Birardi, dated February 28, 2012, as well as his non-confidential summary of that report, citing a confidential informant's tip, which Birardi considered to be credible and reliable, as the basis for Major Yacubovich's order that Honan submit to a urine analysis. At the conclusion of the disciplinary proceeding on April 17, 2012, the hearing officer found Honan guilty of the *.204 charge and sanctioned him to fifteen days' detention, suspended for sixty days; 120 days' loss of commutation time; thirty days' loss of recreation privileges, with credit for time served; permanent loss of contact visits and 365 days' random urine monitoring.

On appeal, Honan raises the following issues:

I. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF GUILT AS THE ORDER TO SUBMIT TO URINE ANALYSIS WAS INVALID AND IN VIOLATION OF THE APPELLANT'S ...

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