LINWOOD BASKERVILLE v. LINWOOD BASKERVILLE, Appellant, 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NOT FOR PUBLICATION WITHOUT THE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-6330-04T16330-04T1

LINWOOD BASKERVILLE,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________________

 

Submitted March 14, 2006 - Decided March 28, 2006

Before Judges Skillman and Sabatino.

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

Linwood Baskerville, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Petitioner Linwood Baskerville, who is presently incarcerated at East Jersey State Prison on a fifteen-year term for robbery, appeals the Department of Corrections' final decision imposing discipline upon him for the use of a prohibited substance in violation of N.J.A.C. 10:4-4.1. Petitioner contends that the Department's final decision is not supported by substantial evidence and was reached in a manner violative of his due process rights. We disagree, and affirm.

The records show that on May 23, 2005 all inmates assigned to Baskerville's housing unit were directed to provide a urine sample for random drug screening. Petitioner's specimen tested on site was positive for morphine. His specimen was forwarded to the Department of Health for confirmatory testing, which likewise resulted in a positive result, showing the presence of opiates. The prison officials served petitioner with disciplinary charges based upon the test results.

Initially petitioner, upon being presented with the charges by a Sergeant Andrews, acknowledged his drug use. However, petitioner thereafter obtained the assistance of a counsel substitute and opposed the charges at a contested hearing within the prison. The hearing officer considered the laboratory results and other written submissions. Petitioner waived the opportunity to testify, to call his own witnesses or to examine the Department's witnesses under oath. After considering all the proofs, the hearing officer found petitioner guilty of the infraction. He imposed sanctions of ten days of detention, the permanent loss of contact visits, and 180 days each of administrative segregation, urine monitoring and loss of commutation time. The Department administratively upheld the guilty finding and the recommended sanctions. This appeal followed.

The thrust of petitioner's argument concerns the Department's contention at the hearing that the "continuity of evidence form" for his urine specimen, which he voided at 6:57 p.m. on the date in question, contains two errors. The errors are in the times noted for when petitioner's specimen was transported (the form says "6:45 p.m." rather than the actual time of 7:45 p.m.) and when it was placed in the refrigerator ("6:57 p.m." is shown rather than the actual time of 8:02 p.m.). However, these errors were corrected in a written statement by the officer who prepared the form, Sergeant Sawchuk, which was submitted to and considered by the hearing officer. Sergeant Sawchuk's statement recites as follows:

On the above date in question this writer was part of an assigned team of officers conducting the crime tests for all inmates in Rahway Camp. Please be advised that I inadvertently placed the wrong hour on I/M Baskerville['s] transported urine[;] it should have been 7:45 p.m. instead of 6:45 p.m. and I placed it in the center refrigerator at 8:02 p.m. I mistakenly wrote the time voided at 6:57 p.m. on the placement of urine in the evidence refrigerator.

Although Sergeant Sawchuk did not appear at the disciplinary hearing, petitioner did not seek to compel his testimony, as permitted by N.J.A.C. 10A:4-9.13(a) and N.J.A.C. 10A:4-9.14(a). Nor did petitioner contend that the corrected times noted in Sergeant Sawchuk's statement were erroneous.

We are cognizant that, as a general manner, the Department is obligated to exercise care in the chain of custody of an inmate's urine sample. In particular, N.J.A.C. 10A:3-5.11(f)(8) prescribes that a corrections staff member who receives custody of an inmate's urine specimen "shall record on the continuity of evidence form the date and time the specimen was received, the name of the staff member from whom it was received, and the date and time of specimen placement into the evidence locker and/or locked refrigerator." Ibid. That regulation does not preclude, however, the correction of clerical errors appearing on the form.

Despite the two discrepancies in the times shown on the continuity of evidence form, appellant does not dispute that he signed the form, which confirms that the specimen container was closed, sealed and labeled in his presence. That signed acknowledgment, as the hearing officer noted in his decision, sufficiently ensures the integrity of the specimen in this case, particularly in light of petitioner's inculpatory reaction when he was first served with the charges and his failure to offer competing proofs at the hearing. Under these circumstances, we believe it was not vital for the Department to produce Sergeant Sawchuk as part of its case-in-chief before the hearing officer. We also discern no deprivation of petitioner's due process rights here under the standards expressed in Avant v. Clifford, 67 N.J. 496, 522 (1975).

On the whole, we conclude that the finding of petitioner's guilt is supported by substantial evidence and comports with constitutional norms. McDonald v. Pinchak, 139 N.J. 188 (1995). We thus affirm the administrative findings and the corresponding discipline.

 

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A-6330-04T1

March 28, 2006