DAVID MCINTOSH v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1741-05T31741-05T3

DAVID MCINTOSH,

Defendant-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Plaintiff-Respondent.

__________________________________

 

Submitted September 5, 2006 - Decided September 18, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from a Final Decision of the Department of Corrections.

David McIntosh, appellant, pro se.

Anne Milgram, Acting Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant David McIntosh, Inmate Number 485527, Bayside State Prison, Leesburg, appeals the final determination of the Department of Corrections (DOC) of disciplinary charges against him which returned him to state prison from Kintock III, a residential community release program in Newark.

On October 28, 2005, at approximately 3:38 p.m., a person identifying himself as "Kenny" notified Anthony Williams, Director of Operations for Kintock III, that McIntosh, a resident at Kintock III, had sold marijuana to Kenny's thirteen-year-old son. Kenny advised that McIntosh was carrying a black Timberland backpack and that inside the main compartment he had a slit where he concealed the marijuana. When McIntosh returned to Kintock III at 4:53 p.m., he signed in he was searched by Manager Eliel Chaparro and no contraband was found at that time. However, based on the allegation from the outside caller, Kintock III determined to administratively return McIntosh to the DOC. In the meantime, he was permitted to return to his room #304.

At 5:34 p.m. the DOC arrived at Kintock III to take McIntosh into custody on the administrative return and the DOC representative was taken to McIntosh's room. Immediately after McIntosh was taken into custody, Chaparro retrieved the backpack and at 5:41 p.m. conducted a thorough search of it. Chaparro then noticed a slit and found one small plastic bag with a green, leafy substance inside. The substance was field tested and determined to be marijuana. McIntosh was charged with a *.203 infraction, possession or introduction of any prohibited substance such as drugs, intoxicants, or related paraphernalia not prescribed to the individual by the medical or dental staff. McIntosh was remanded back to the DOC at 5:50 p.m. on October 28, 2005. The disciplinary report was delivered to McIntosh on October 29, 2005, at 9:26 a.m.

On November 1, 2005, Hearing Officer Sal Maniscalco began the courtline hearing for the charge. The hearing was continued on November 2 and then postponed to November 3, 2005, for an additional report. Hearing Officer Lisa Jantz completed the hearing. McIntosh was offered a counsel substitute, he accepted this offer, and was represented by a counsel substitute.

McIntosh denied that he was guilty and claimed that he had been set up. However, he could not say who set him up. He testified that he had returned from work to Kintock and that his bag was searched at the time without finding any evidence. He testified that his backpack was returned to him and he left it in a common area when he went back to him room. When the DOC came to pick him up, his property was not bagged. When it was searched after he had been picked up, the marijuana was found in the backpack. McIntosh did not request that any witnesses be called on his behalf and declined an offer to have an investigation conducted. He was also offered an opportunity to confront the witnesses against him, but he declined to confront them.

Based on Manager Chaparro's report and the results of the search and field test, Hearing Officer Jantz found that the bag had not been searched until after the DOC arrived. She found McIntosh guilty of the charge and imposed sanctions of 15 days of detention, a loss of 270 days of commutation credit, and 270 days of administrative segregation.

On November 3, 2005, McIntosh administratively appealed the decision to Joseph Rizzo, Administrator of the Central Reception and Assignment Facility; and he modified the sanctions on November 4, 2005, by suspending the detention for thirty days and suspending the 270 days of administrative segregation for sixty days. If McIntosh was charge-free for thirty days, he would not have to serve the detention; if he was charge-free for sixty days, he would have not to serve the administrative segregation. This appeal followed.

McIntosh raises the following issues on appeal:

POINT I - APPELLANT'S SEARCH WAS AN ARBITRARY AND CAPRICIOUS ADMINISTRATIVE SEARCH IN DIRECT VIOLATION OF HIS FOURTH AMENDMENT CONSTITUTIONAL RIGHTS AND IN VIOLATION NEW JERSEY ADMINISTRATIVE CODE 10A.

POINT II - APPELLANT WAS DENIED DUE PROCESS OF LAW IN THAT A THOROUGH INVESTIGATION OF THE CHARGE WAS NOT PERFORMED, AND HIS REQUEST FOR A POSTPONEMENT OF THE HEARING DENIED VIOLATED HIS FOURTEENTH AMENDMENT RIGHT AND WAS IN DIRECT VIOLATION OF N.J.A.C. 10A:4-9.5, ET SEQ.

The record below is bereft of any indication that McIntosh contended that the search of his backpack was in violation of his rights under the United State Constitution or our Administrative Code. As a consequence, the DOC has not had an opportunity to address this issue.

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

See also, State v. Arthur, 184 N.J. 307, 327 (2005); Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998); State v. Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989); A. & B. Auto Stores of Jones Street, Inc., v. City of Newark, 59 N.J. 5, 20 (1971). It is readily apparent that the search of McIntosh's backpack does not go to the jurisdiction of the administrative agency or this court, nor is it a matter of great public concern. We therefore decline to address it.

McIntosh next contends that a thorough investigation was not conducted, depriving him of the process to which he was due under the Fourteenth Amendment and N.J.A.C. 10A:4-95.

N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." It is clear from a review of the record that the DOC did conduct an investigation and the hearing officer also investigated the charge, requesting additional information from Kintock III. Furthermore, at the hearing the hearing officer asked McIntosh if he wanted any further investigation, and he declined the offer.

In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We are satisfied that McIntosh received all the process to which he was due and that the discipline is supported by substantial credible evidence in the record before the agency. We are also satisfied that McIntosh was accorded procedural due process. Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction).

As to the remaining issue raised by McIntosh, that the disciplinary hearings were not recorded and transcribed, after carefully reviewing the record in the light of the writings advanced by the parties, we conclude that "the argument[] made [is] without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.

 

We note, without deciding, that "[a]n informant's basis of knowledge is sufficient 'if the tip itself relates expressly or clearly how the informant knows of the criminal activity.'" State v. Jones, 179 N.J. 376, 389 (2004) (citation omitted).

(continued)

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A-1741-05T3

September 18, 2006