July 17, 2013
JAMES MARTIN, Appellant,
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2013
On appeal from the New Jersey Department of Corrections.
James Martin, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).
Before Judges Lihotz and Ostrer.
James Martin, an inmate at New Jersey State Prison, appeals from a March 14, 2012 decision of the Department of Corrections (DOC), upholding a hearing officer's findings and conclusion that Martin was guilty of two separate disciplinary infractions in violation of *.203, possession or introduction of any prohibited substance (marijuana), N.J.A.C. 10A:4-4.1. Martin appeals, arguing:
APPELLANT WAS DENIED OF [sic] HIS DUE PROCESS RIGHT TO A FAIR HEARING WHEN (A) APPELLANT WAS RELEASED FROM PHD AFTER EXCEEDING THE STATUTORY LIMITATION ONE CAN SERVE ON ANY GIVEN INFRACTION (B) THE SANCTIONS IMPOSED SHOULD BE VACATED SINCE THE APPELLANT DID NOT RECEIVE A TIMELY RESPONSE TO HIS APPEAL.
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL SUBSTITUTE WHEN COUNSEL SUBSTITUTE SIGNED LINE 16 LONG BEFORE APPELLANT APPEARED AT COURT-LINE AND REFUSED TO SUBMIT APPEAL PREPARED BY APPELLANT.
In a supplemental brief, Martin also maintains:
APPELLANT WAS DENIED OF [SIC] HIS DUE PROCESS RIGHT TO A FAIR HEARING WHEN APPELLANT WAS DENIED THE RIGHT TO CONFRONT ALL HIS ADVERSARIES.
The critical facts are as follows. On March 18, 2010, Martin was strip-searched. Senior Corrections Officer S. Pazik found a "green leafy substance wrapped in plastic, " concealed in the front zipper area of Martin's work pants, which Pazik believed was a controlled dangerous substance. After Martin was placed in pre-hearing detention (PHD), a search of his cell was conducted by Senior Corrections Officer A. Wilkins, who discovered a rolled up piece of paper shaped like a cigarette and containing a green substance, hidden in a pair of shorts. The following day, Martin was served with notice of the disciplinary charges.
The disciplinary hearing was first scheduled for March 22, 2010, but adjourned several times while awaiting receipt of a laboratory report. Special Investigations Division Senior Investigator Valisa Leonard field-tested the substance found during the strip-search, the results of which test were positive for marijuana. The Narcotics Field Test Form was dated September 1, 2010. The hearing commenced on September 3, 2010.
The hearing officer found Martin guilty of both charges and imposed combined sanctions of fifteen days of detention, with credit for time served; 180 days of administrative segregation; 180 days loss of commutation time; 180 days of urine monitoring; and permanent loss on contact visits.
Martin appealed. Following review, the hearing officer's decision was upheld by the DOC. Martin filed an appeal with this court. On January 27, 2012, the DOC's motion for limited remand was granted.
During the remand hearing, Martin moved for dismissal of the second charge, which resulted from finding an alleged "joint" in his cell, arguing the substance had not been tested. In the alternative, if the hearing proceeded, he requested the opportunity to confront and cross-examine Leonard. The hearing officer denied these requests, stating "SID Leonard credentials listed reliability supported by DeNike case [w]here substance stored & reason for delay noted (A18) & (A20)."
At the conclusion of the rehearing, Martin was found guilty of the infractions and the same sanctions were imposed. He appealed from the hearing officer's decision. The DOC upheld the hearing officer's findings and conclusions. This appeal ensued.
Our review of a DOC inmate disciplinary decision is "severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). We determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, ' considering 'the proofs as a whole[.]'" Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We will "reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). We do not conduct an independent assessment of the evidence, and if "'an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result.'" In re Taylor, 158 N.J. 644, 657 (1999) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)). The burden of proof rests upon the one challenging the action. McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App. Div. 2002) (citation omitted).
On appeal, Martin argues his right to procedural due process was violated during the administrative review. He maintains his release from PHD on April 19, 2010 equates to dismissal of the charges. Further, he contends the process violated his liberty interest because the DOC failed to conduct the hearing within thirty-three days of service of the charges. Finally, he argues he was denied the opportunity to confront Leonard. We are not persuaded.
In a disciplinary proceeding, an inmate is not entitled to the "'full panoply of rights'" as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972)). See also McDonald v. Pinchak, 139 N.J. 188, 194 (1995). Rather, an inmate charged with a disciplinary infraction is entitled to written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, and, in certain circumstances, the assistance of counsel substitute. Avant, supra, 67 N.J. at 525-33. See also Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995) (tracing the history of protections afforded prisoners in administrative hearings).
"In New Jersey, the administrative rules and regulations that govern the fulfillment of due-process rights for prisoners are balanced against the needs and objectives of the prison" to assure the safety and security of those confined, prison personnel, and the public. McDonald, supra, 139 N.J. at 194.
Various provisions of Title 10A of the Administrative Code provide procedural due process protections to inmates charged with disciplinary infractions. Here, Martin was timely served with notice of the charges, N.J.A.C. 10A:4-9.2; given the charges in writing and permitted to enter his plea, N.J.A.C. 10A:4-9.5(e); given a counsel substitute, N.J.A.C. 10A:4-9.12; permitted to make a statement, N.J.A.C. 10A:4-9.5(e); permitted to call fact witnesses or present documentary evidence, N.J.A.C. 10A:4-9.13, which he declined; and allowed to appear at the initial hearing, which was held within three days of presentation of the charges, N.J.S.A. 10A:4-9.8(c).
N.J.A.C. 10A:4-9.9 specifically states: "The failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." The hearing officer has discretion in this regard, and may dismiss charges because of a delay after considering: "1. The length of the delay; 2. [t]he reason for the delay; 3. [p]rejudices to the inmate in preparing his/her defense; and 4. [t]he seriousness of the alleged infraction." Ibid. Based on this record, we reject Martin's suggestion the hearing officer misapplied his discretion by denying Martin's request to dismiss the charges because the final hearing was delayed.
Although Martin was initially confined in PHD, he was released when the testing results were delayed and the hearing was adjourned. See N.J.A.C. 10A:4-9.8(c), (d) (providing priority in scheduling hearings where prisoner is confined in PHD). Martin knew the reason for the delay and does not articulate any prejudice resulting therefrom. Further, this matter was re-opened on rehearing, and Martin was again given the opportunity to present his case.
We turn to the denial of Martin's request to cross-examine Leonard. The hearing officer denied the request, concluding Leonard's credentials were provided in writing, the chain of custody was stated, and the delay in testing resulted from the need of the agency to be provided with new testing kits.
N.J.A.C. 10A:4-9.14 provides:
(a) The opportunity for confrontation and cross-examination of the accuser(s) and/or the State's witness(es), if requested, shall be provided to the inmate . . . in such instances where the Disciplinary Hearing Officer or Adjustment Committee deems it necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved.
(b) The Disciplinary Hearing Officer or Adjustment Committee may refuse confrontation and cross-examination when confrontation and cross-examination is determined by the Disciplinary Hearing Officer or Adjustment Committee to be:
3. Likely to produce repetitive testimony[.]
The hearing officer held Leonard was an expert in her field and had provided a report following the field test, which confirmed the substance seized was marijuana. Leonard included the type of test used, and listed her credentials on the report. Martin never explained the basis of his confrontation request or identified the facts he sought to challenge. He neither asserts nor provides proof the substance was something other than marijuana. In light of these facts, we conclude the hearing officer did not abuse his discretion in denying confrontation, as it would not have aided the proceeding.
The final argument for review is Martin's claim counsel substitute was ineffective. Martin mentions only the alleged failure to produce the chain of custody for the urine sample. However, that evidence was not the basis of any charge.
Any argument advanced but not specifically addressed is found to be meritless. R. 2:11-3(e)(1)(E). Accordingly, we affirm the DOC's final decision.