October 21, 2013
MARK SMITH, Appellant,
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2013.
On appeal from the New Jersey Department of Corrections.
Mark Smith, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).
Before Judges Graves and Guadagno.
Mark Smith, a State prison inmate, is serving a five-year sentence with three years of parole ineligibility for various weapon offenses. He appeals from a final agency decision of the Department of Corrections (DOC). Smith was found guilty of misusing or possessing a cell phone in violation of N.J.A.C. 10A:4-4.1(a)*.009 and sanctioned to 15 days detention, 200 days loss of commutation time, 200 days administrative segregation, and permanent loss of contact visits. Smith's administrative appeal was denied on February 10, 2012. Because Smith was not afforded his due process right to a fair hearing, we reverse and remand for a new hearing.
Smith was charged in a disciplinary report with violating prohibited act *.009, which provides as follows: "[M]isuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention." An electronic communication device is defined as "a device or related equipment or peripheral that is capable of electronically receiving, transmitting or storing a message, image or data" such as a telephone. N.J.A.C. 10A:1-2.2.
The disciplinary report specified:
On 01/16/2012 the Southern State Correctional Facility (SSCF) custody staff discovered a Kyocera cell phone . . . located within the SSCF secure perimeter; specifically housing unit #5. On 02/02/2012, an investigation revealed the aforementioned cell phone contained a photograph of inmate Mark Smith that was taken on 01/15/2012 while he was assigned to housing unit #5.
The disciplinary report also stated: "Additional information on file in the office of special investigation division [(SID)], " and "other facts concerning the charge" include "evidence in SSCF SID." The disciplinary report concluded that Smith "had used or was in possession of a cell phone while in unit #5." Smith plead not guilty.
Smith's initial disciplinary hearing was scheduled for February 6, 2012. However, the hearing was postponed to allow the hearing officer to obtain the "cell phone photo & report."
Following a hearing on February 8, 2012, Smith was found guilty. In paragraph 13 of her decision, the hearing officer indicated there were no "correctional facility confidential materials" and no confidential materials were withheld from Smith. In paragraph 18, the hearing officer summarized the "evidence relied on" as follows: "I/M pleads no plea a cell phone was found by security staff with[in] the SSCF perimeter. Sr. Investigator Rowley reviewed the information in the Kyocera cell phone and the cell phone contained a photo of I/M Smith."Additionally, paragraph 20 of the decision states: "Evidence and I/M statement [were] taken into consideration. I/M is not authorized to be in possession/use of a cell phone."
A redacted version of a confidential SID report, identified as exhibit A-7 in the hearing officer's decision, states that the cell phone was located in "unit 5 left trashcans outside dayroom." The redacted SID report included two photographs of Smith recovered from the cell phone, which were taken on January 15, 2012, and approximately twenty additional photographs that had been redacted. The DOC claims in its appellate brief that the photographs were redacted because they "may have jeopardized an on-going SID investigation" and "were not relevant to Smith or his charge."
In his administrative appeal, Smith argued: "The hearing officer still could not explain where the phone was found (she stated SSCF perimeter). Sure Mr. Smith was snapped in a picture (obvious[ly]), but that only means that he wasn't the one in possession of the phone. Also, Mr. Smith had the right to view pictures or the phone."
The decision of the hearing officer was upheld on February 10, 2012. In the final DOC decision, the associate administrator stated:
There was sufficient evidence for the finding of guilt by the hearing officer on the *.009 charge. Your actions violate the zero tolerance policy prohibiting the possession of electronic devices in a correctional facility. Therefore, I must hold you accountable for your actions. Leniency is not warranted for this type of behavior.
Smith argues on appeal that the DOC did not explain how it "concluded that [his] picture being on the phone proves he in some way or at some time possessed the phone." Based on our review of the record, we agree there was insufficient evidence to find Smith guilty of misusing or possessing the cell phone.
Our review of a final agency decision is limited. "Ordinarily, an appellate court will reverse the decision of [an] 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)); accord Williams v. Dep't of Corr., 330 N.J.Super. 197, 203-04 (App. Div. 2000). "We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J.Super. 347, 352 (App. Div. 2005). However, "while an administrative decision is entitled to deference, we will not perfunctorily review and rubber stamp the agency's decision." Balagun v. N.J. Dep't. of Corr., 361 N.J.Super. 199, 203 (App. Div. 2003). "Instead, we insist that the agency disclose its reasons for any decision, even those based upon expertise, so that a proper, searching, and careful review by this court may be undertaken." Ibid.
A finding of guilt at a disciplinary hearing must be supported by "substantial evidence." Avant v. Clifford, 67 N.J. 496, 530 (1975); N.J.A.C. 10A:4-9.15(a). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion."
In re Application of Hackensack Water Co. , 41 N.J.Super. 408, 418 (App. Div. 1956).
A prison disciplinary proceeding "'is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.'" Avant, supra, 67 N.J. at 522 (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972)). However, in such a context, prisoners continue to have certain procedural due process rights including the limited right to call witnesses present documentary evidence and to confront and cross-examine witnesses when necessary "for an adequate presentation of the evidence particularly when serious issues of credibility are involved" Id. at 530
Moreover pursuant to NJAC 10A:4-915(b) "[e]vidence relied upon in making a determination shall be specified on the Adjudication of Disciplinary Report form" "This regulation requires a written statement summarizing the hearing officer's basis for relying on confidential information" Johnson supra 375
N.J.Super at 350-51 Here however the DOC did not provide such a statement See
Fisher v Hundley, 240 N.J.Super 156 158 (App Div 1990) (stating that any redacted information and the reason for concealment must be "made part of the confidential record on appeal")
In this case the DOC's decision was apparently based solely on the photographs of Smith contained in the cell phone and we are not convinced there is any valid reason for failing to provide him with the complete unredacted SID report Accordingly we reverse the adjudication and penalty imposed for violating *009 and remand the matter for a new disciplinary hearing
Reversed and remanded.