DARNELL BELL v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4903-04T24903-04T2

DARNELL BELL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________________

 

Submitted June 20, 2006 - Decided July 17, 2006

Before Judges Stern and Fall.

On appeal from an administrative determination

of the Department of Corrections.

Darnell Bell, appellant, pro se.

Zulima V. Farber, Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Kimberly A. Sked,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Darnell Bell, appeals from the final administrative determination of the Department of Corrections, finding him guilty of committing a prohibited act of possessing or introducing a prohibited substance not prescribed for an inmate by the medical or dental staff and the imposition of sanctions. An Assistant Superintendent upheld the findings and recommended discipline of fifteen days detention, 300 days administrative segregation, 300 days loss of commutation credits, 300 days of urine monitoring and enrollment in an in-patient drug program. Appellant's request for leniency and dismissal of the charges was denied, as "[t]here was compliance with the New Jersey Administrative Code" and "[t]he decision of the Hearing Office was based on substantial evidence."

On this appeal Bell argues:

POINT I THE FAILURE OF THE DOC TO MAKE A CHAIN OF

EVIDENCE OR CONTINUITY FORM AVAILABLE TO

APPELLANT TO AFFORD THE OPPORTUNITY TO

CHALLENGE THE RELIABILITY OF THE TEST

RESULTS OF LAB DENIED APPELLANT OF HIS

FUNDAMENTAL RIGHTS TO DUE PROCESS

POINT II THE UNJUSTIFIED DELAY IN BRINGING APPELLANT

BEFORE COURT-LINE WHILE ON PRE-HEARING

DETENTION AND WHEN HE WAS RELEASED FROM

DETENTION TO DETERMINE IF ANY FURTHER

POSTPONEMENTS WERE NECESSARY AMOUNTED

TO A VIOLATION OF N.J.A.C. 10A:4-9.7 AND

THE APPELLANT'S RIGHT TO DUE PROCESS

Appellant does not challenge the substantive finding that, during a search, he was found in possession of three small packets containing controlled dangerous substances. As a result thereof, Bell was placed in pre-hearing detention on November 24, 2004.

At the discipline hearing, which was postponed or carried on twelve dates from November 29, 2004 to March 10, 2005 appellant was assisted by counsel substitute. After review of the evidence against him, appellant "did not wish to make a statement" on his own behalf, and chose not to "request any witnesses" on his behalf. He also declined to confront and cross-examine the adverse witnesses.

Appropriately stated, the issue before us is whether the due process guarantees of Avant v. Clifford, 67 N.J. 496 (1975), were satisfied, and whether there was sufficient evidence in the record to support the adjudications. We conclude that the record supports the finding and that the hearing complied with the requirements of due process. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (holding that an appellate court will only reverse an administrative agency if its decision is "arbitrary, capricious, or unreasonable or it is not supported by substantial credible evidence in the record as a whole"). Accordingly, we affirm the final administrative determination. R. 2:11-3(e)(1)(D). We add only the following.

The Department asserts that the arguments raised by appellant regarding the lack of a claim of custody and laboratory report "should be disregarded because they concern issues not raised below." The record does not show the contrary, and there is no reply brief or contention by appellant in disagreement with the contention.

Appellant appears correct that the adjudication did not occur within the guidelines of N.J.A.C. 10A:4-9.8(c) concerning to time limits. However, as the Department points out, that does not require dismissal of the charges, see N.J.A.C. 10A:4-9.9(a), particularly because the hearing began within five days of the placement in pre-hearing detention. See N.J.A.C. 10A:4-9.8(c). Although the hearing was conducted over a period of time ending on March 10, 2005, some time was necessary to properly test the seized specimens, and we emphasize that appellant does not show any undue prejudice by the delay. See N.J.A.C. 10A:4-9.9(a)(3). He received written notice of the charges and hearing more than twenty-four hours prior to its commencement, a hearing before an impartial hearing officer, the right to present, confront and cross-examine witnesses, and the assistance of counsel substitute. See Avant v. Clifford, supra, 67 N.J. at 533. In essence, we find no basis for disturbing the final determination. See Henry, supra, 81 N.J. at 579-80.

The final administrative determination is affirmed.

 

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A-4903-04T2

July 17, 2006