DUDLEY RUE v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5299-06T35299-06T3

DUDLEY RUE,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted January 7, 2008 - Decided

Before Judges Parrillo and Sabatino.

On appeal from a Final Decision of the Department of

Corrections.

Dudley Rue, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney

General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

In this prisoner disciplinary appeal, Dudley Rue, an East Jersey State Prison inmate, appeals from the final administrative decision issued by respondent, New Jersey Department of Corrections (DOC), on April 20, 2007, adjudicating him guilty of disciplinary infraction *.204, the prohibited act of "use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed . . . by the medical or dental staff," contrary to N.J.A.C. 10A:4-4.1(a).

The issues in this appeal arise from an incident occurring on March 25, 2007, when Rue was allowed to leave his cell,

# 139, on the third wing flats to get his controlled medication. As Senior Corrections Officer (SCO) Washington walked back to the front of the wing, he turned around and observed Rue near cell # 149 talking to an unidentified person on the third tier. Washington then saw Rue catch something that was thrown to him from the third tier. When Washington ordered Rue to come to his desk, Washington saw Rue raise his hand to his mouth, as if to put something in it, and swallow. When Rue arrived at his desk, there was nothing in Rue's mouth or hands. Washington immediately reported the incident to his supervisors and the following morning, March 26, 2007, Lieutenant West ordered Rue to void a urine sample for testing. The sample taken from Rue field-tested positive for THC (marijuana). The specimen was then sent to the New Jersey Department of Health and Senior Services Laboratory for further analysis on March 27, 2007, where it tested positive for THC.

Rue was charged with the cited prohibited act. He pled not guilty and was provided with the assistance of counsel substitute. The charge was referred to a hearing officer who, following a hearing, ultimately found Rue guilty, concluding:

[Senior Corrections Officer] Houston reports Rue's urine tested positive for marijuana, as is supported by 2 positive lab tests. Inmate pleads not guilty, stating no probable cause existed to request a urine. This is clearly not so, based on the observations of SCO Washington (A-5). The staff reports and the positive lab results amount to substantial evidence. The charge is upheld.

Rue was sanctioned to 15 days' detention, 180 days' loss of commutation credit, permanent loss of contact visits and 180 days' urine monitoring. Rue filed a timely administrative appeal with the Prison Associate Administrator, who upheld the decision of the hearing officer.

On appeal, Rue essentially challenges the taking of his urine sample and the validity of the laboratory drug test, arguing there was no reasonable factual basis to suspect Rue of using or possessing drugs; the DOC failed to explain a one-hour time lapse between the taking of his urine sample and its placement in the refrigerator; and the lack of a signature from, or qualifications of, the examiner rendered the test results unreliable.

The latter two claims are raised for the first time on this appeal and are therefore not properly cognizable here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Despite being afforded ample opportunity, Rue never presented below his arguments concerning the validity of the lab tests, thus precluding the development of a proper record for our informed review. On this score, both during the investigation and adjudication, Rue was offered and declined the opportunity to call witnesses on his behalf at the hearing. On line 14(c) of the adjudication, which states, "All witnesses the inmate asks to be called including those requested through the investigator," the hearing officer noted, "[i]nmate did not request [any] witnesses at investigation or at C/L [courtline]."

Rue was offered and accepted the opportunity to confront/cross-examine adverse witnesses. On line 15 of the adjudication, which states, "[l]ist of adverse witnesses the inmate requests to confront/cross-examine including those requested through the investigator," the hearing officer noted, "[i]nmate was offered the opportunity to confront adverse witnesses. Inmate declined the opportunity."

Next, Rue and his counsel substitute were afforded the opportunity to review the adjudication report and all evidence utilized by the hearing officer. His counsel substitute's signature on line 16 indicates that the information on lines 1 through 15 accurately reflected what took place at the inmate's disciplinary hearing.

Thus, Rue enjoyed ample opportunity to challenge the lab results on either or both chain-of-custody or authenticity grounds, but failed to do so. Because neither claim raises questions of "'the jurisdiction of the trial court or concern[s] matters of great public interest,'" Nieder, supra, 62 N.J. at 234 (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)), Rue may not raise them presently.

Rue's other claim about the lack of probable cause to support the voiding order lacks merit. R. 2:11-3(e)(1)(E). SCO Washington reported that he observed Rue talking with an unidentified person on a tier above him, that Rue caught something that had been thrown to him, and that he brought his hand to his mouth and swallowed. The situation was immediately reported to Washington's supervisors and the following morning, March 26, 2007, Lieutenant West ordered Rue to void a urine sample for testing. That order was amply supported by "a reasonable factual basis." N.J.A.C. 10A:3-5.10(b)(6).

In sum, the decision issued by respondent DOC is "supported by substantial credible evidence in the record," Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980), and appellant Rue was provided adequate due process protections in the filing, processing and hearing of the charge against him. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975).

Affirmed.

(continued)

(continued)

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A-5299-06T3

January 29, 2008