CHRISTOPHER MCCRAY v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4305-04T14305-04T1

CHRISTOPHER MCCRAY,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

 

Submitted December 13, 2005 - Decided February 10, 2006

Before Judges Lefelt and Hoens.

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

Christopher McCray, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Christopher McCray, an inmate at New Jersey State Prison, appeals from the final administrative agency decision of respondent, Department of Corrections (DOC). DOC affirmed a hearing officer's adjudication finding McCray guilty of committing a prohibited act, *.202, possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool; and affirmed the disciplinary sanctions imposed upon him. See N.J.A.C. 10A:4-4.1(a)*.202. We affirm.

The disciplinary charges arose shortly after McCray had been transferred to New Jersey State Prison from another prison facility. On March 15, 2005, when McCray's possessions arrived from the other prison, they were unpacked and inventoried by SCO Ortiz, who found a six inch metal shank with a sharpened end hidden inside a container of baby powder. After being charged with the violation, McCray spoke with Sgt. Daniels, who was conducting the investigation of the incident. According to Sgt. Daniels, McCray said that he had been having trouble with Officer Johnson, one of the officers at the other prison. McCray also told Sgt. Daniels that Officer Johnson had said that she would "get him when he leaves" that prison. McCray declined the opportunity to have statements taken of any witnesses during the investigation but requested the assistance of counsel substitute.

At the disciplinary hearing, McCray was assisted by counsel substitute, as he had requested. McCray did not enter a plea. Both McCray and counsel substitute were given the opportunity to make a statement, but neither did so. McCray did not request that any witnesses be called at the hearing and he declined the chance to confront any witness when that opportunity was offered to him.

Following consideration of the report filed by SCO Ortiz, the report of Sgt. Daniels which set forth McCray's statement, and photographs of the baby powder container and the metal shank, the hearing officer found McCray guilty of the prohibited act. He based his conclusion on the following findings:

Officer reports that during an inventory process, the officer found a sharpened 6" piece of metal in his property. Officer has no reason to fabricate this charge. No evidence to support inmate's claim (via investigating Sgt.) that the weapon was planted. All relied on to determine guilt.

Based on this finding, the hearing officer recommended sanctions of fifteen days of detention, with credit for time served, and 180 days loss of commutation time. In imposing the sanctions, the hearing officer noted that there was "no evidence of mental health problems." The hearing officer also reasoned that "if held in a hand, using an up and down motion, weapon could cause a serious injury."

McCray filed an administrative appeal, in which he contended that the adjudication was based on a misinterpretation of the facts and in which he sought leniency. On March 21, 2005, Assistant Superintendent Trent issued a decision upholding the adjudication and the sanctions.

On appeal, McCray contends that he was denied his rights to due process, that he was prevented from presenting evidence, that he was precluded from confronting and cross-examining witnesses, that the decision of the Superintendent was arbitrary and unfair and that the hearing officer's decision is not supported by substantial evidence.

We have reviewed these arguments in light of the record and the applicable legal principles and find them to be without sufficient merit to warrant discussion in a formal written opinion. R. 2:11-3(e)(1)(E). We therefore affirm and add only the following observations.

In reviewing DOC decisions respecting discipline of inmates, we apply the standard of review applicable to final agency decisions in general. As a result, our review is limited to a determination of whether the factual findings of the agency are based on substantial credible evidence in the record. Where there are no factual disputes which required findings by the agency, we need only consider whether the actions of DOC were arbitrary or capricious. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Burris v. Police Dep't, Township of West Orange, 338 N.J. Super. 493, 496 (App. Div. 2001). The burden of demonstrating that the action of DOC was arbitrary, capricious or unreasonable rests upon the individual who is challenging the action of the agency. See McGowan v. New Jersey State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Services, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

First, prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. Rather, prisoners are entitled to certain limited protections prior to the imposition of disciplinary sanctions. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Avant v. Clifford, 67 N.J. 496, 525-33 (1975). Here, McCray was in fact afforded all of the due process rights to which he was entitled.

In particular, we find no support in the record for McCray's assertion that he was denied an opportunity to consult with counsel substitute. He received the permitted period of time to prepare, see N.J.A.C. 10A:4-9.2, which suffices for purposes of due process. See Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995); Avant, supra, 67 N.J. at 525. Even had he been deprived of that opportunity, in the absence of some other due process violation, we would deem it harmless. See Jacobs, supra, 139 N.J. at 219-20.

Second, there is no evidence in the record that McCray was denied an opportunity to present evidence or to confront or cross-examine witnesses. On appeal, McCray asserts that he requested a variety of evidence he believed might be relevant to the proceedings, including surveillance tapes of the packing and unpacking of his possessions and the opportunity to submit to a polygraph examination, see N.J.A.C. 10A:4-11.4, all of which was denied. He also contends that he requested the right to confront the officer at the other prison who had packed his possessions, that he was denied that opportunity as well and that he was not even permitted to learn the identity of the specific officer involved.

The record is devoid of evidence suggesting that any of these assertions is true. There is no support for McCray's argument on appeal that he requested evidence, including surveillance tapes, a polygraph, or the identity of the officer who packed his possessions. There is no evidence that he requested the opportunity to cross-examine, confront or call any witness. Rather, the record contains the adjudication report which sets forth that McCray made no request of any kind respecting evidence or witnesses. That report, moreover, bears the signature of counsel substitute acknowledging that the report is accurate.

Finally, our review of the record demonstrates that the agency's findings and conclusions are based on substantial credible evidence and that the proceedings before the hearing officer and in connection with McCray's administrative appeal were conducted in a fair and impartial manner.

 
Affirmed.

(continued)

(continued)

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A-4305-04T1

February 10, 2006