MARVIN SAPP v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-xxxx0730-07T2

MARVIN SAPP,

Appellant,

vs.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted May 21, 2008 - Decided

Before Judges Sapp-Peterson and Messano.

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

Marvin Sapp, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Sarah B. Campbell, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Marvin Sapp, an inmate currently confined at South Woods State Prison in Bridgeton, appeals a final determination of the Department of Corrections (DOC) finding him guilty of a drug-related disciplinary infraction. We affirm.

On April 3, 2007, while searching for an escaped inmate, corrections officers observed Sapp and several other men outside a Wawa convenience store in Oceanview walking to and from a white van. Because one of the officers recognized the clothing the men were wearing as State-issued pants and boots, a lookup was run on the vehicle. The officers also radioed for backup from the Special Investigations Unit (SIU) of the DOC. While waiting for the arrival of the backup officers, a marked New Jersey State Police vehicle pulled into the Wawa, and as it did, Sapp was observed walking to the white van where he threw a white bag under the van. The bag was retrieved and a canine search of the discarded bag proved positive for suspected narcotics. A subsequent visual inspection by the canine sergeant revealed twenty packets wrapped in cellophane and labeled "Grand Hustle, in the Streets." The twenty packets were located inside a Halls throat lozenge bag.

Sapp was charged with disciplinary infraction *.203, "possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff." N.J.A.C. 10A:4-4.1. He was placed in pre-hearing detention and formal charges were served upon him two days later. Sapp was released from pre-hearing detention after ten days.

A disciplinary hearing was scheduled for April 16, 19 and 24, but was adjourned by the disciplinary hearing officer, who was awaiting receipt of the investigation reports, photographs of the evidence, and State Police laboratory reports. The laboratory results were provided to the hearing officer on August 23. Although he initially entered no plea to the charge, on August 28, 2007, Sapp changed his plea to not guilty. One month later, Sapp and his counsel substitute viewed the April 3, 2007 surveillance tape of the Wawa store.

The disciplinary hearing was conducted on September 28, 2007. Sapp had the assistance of counsel substitute. He was offered the opportunity to call witnesses but declined to do so. Two of the investigating officers, Captain James Lutz and Investigator Roy Rowley, testified during the hearing, and Sapp was afforded the opportunity to question these witnesses. Sapp's counsel substitute argued on Sapp's behalf:

It is clear that Rowley lied, because he said the video from Wawa clearly shows [Inmate] Sapp having possession of the bag and the actual video provided does not show this. This was #11 confrontation question answer on A23. In #3 he says he didn't see Sapp with the bag. This contradicts what he said in #11. We request a dismissal based on the noted contradictions and lack of evidence and the noted violations of due process. The photos also show they had on civilian clothing, not state issue. Also note his outstanding disciplinary history.

Sapp was adjudicated guilty of the charge and received credit for time served in pre-hearing detention, 180 days loss of commutation time, 180 days administrative segregation, with 60 days suspended, permanent loss of contact visits and 180 days urine monitoring and drug programming. Sapp appealed the adjudication, arguing (1) that the proceedings to adjudicate the charge were unreasonably delayed and unexplained, (2) that the officers provided contradictory testimony and were provided confrontation questions in advance of the proceedings, and (3) that he was denied confrontation with Corrections Officer Anthony Hendricks. Sapp also requested leniency. The assistant superintendent who considered the appeal upheld the adjudication, and Sapp's loss of commutation credits was approved. The present appeal followed.

Sapp raises the following points for our consideration:

POINT I

APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED BECAUSE HEARING OFFICER ZANE MAGUIRE DID NOT ADHERE TO DEPARTMENTAL RULES AND REGULATIONS AS OUTLINED IN THE DISCIPLINARY PROCESS.

POINT II

HEARING OFFICER ZANE MAGUIRE DID NOT PRESENT SUBSTANTIAL EVIDENCE WHICH IS REQUIRED TO FIND APPELLANT GUILTY OF DISCIPLINARY INFRACTION *.203 AS PURSUANT TO N.J.A.C. 10A:4-9.15.

POINT III

APPELLANT MUST BE AFFORDED A NEW HEARING SINCE THE PRESENT RECORD FAILS TO DEMONSTRATE EXCEPTIONAL CIRCUMSTANCES AS REQUIRED BY N.J.A.C. 10A:4-9.7, 10A:4-9.8(C)[,] AND THE DEPARTMENT OF CORRECTIONS VIOLATED N.J.A.C. 10A:4-9.9.

After carefully reviewing the record, we are satisfied that Sapp's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). The final administrative decision issued by the DOC is supported by "substantial credible evidence in the record." Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980). We add only the following comments.

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." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). 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 when its findings are supported by substantial evidence in the record. Henry, supra, 81 N.J. at 579-80.

Here, the hearing officer found the testimony from Captain Lutz and Investigator Rowley that they witnessed Sapp discarding a bag under a van parked outside of the Wawa in Oceanview on April 3, 2007 credible. It was later confirmed through laboratory testing that the twenty items seized from the bag were heroin. Although there were numerous delays in adjudicating the charge, there is no evidence that Sapp was prejudiced by the delays, and some of the delays were occasioned by the change in Sapp's plea to not guilty, which necessitated testing of the suspected narcotics. We are therefore satisfied there is substantial credible evidence in the record to support the final administrative agency determination. Ibid.

Affirmed.

 

DOC inmate disciplinary regulations classify "'[a]sterisk offenses' [as] prohibited acts considered to be the most serious violations, resulting in the most severe sanctions." Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).

Confrontation of a witness in a prison disciplinary proceeding requires that written questions be submitted to the hearing officer in advance of the proceeding where they are reviewed for relevancy and to ensure that the questions are not harassing. N.J.A.C. 10A:4-9.14(c)-(d).

(continued)

(continued)

6

A-0730-07T2

July 10, 2008