PHILLIP A. DIXON 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NOT FOR PUBLICATION WITHOUT THE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-4256-07T34256-07T3

PHILLIP A. DIXON, #206938/375768B

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted January 11, 1010 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from a Final Determination of the New Jersey Department of Corrections.

Phillip A. Dixon, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Phillip A. Dixon (Dixon), an inmate at New Jersey State Prison (NJSP), appeals from a final determination of the New Jersey Department of Corrections (NJDOC) finding that he committed prohibited act *.551, making or possessing intoxicants, alcoholic beverages or other prohibited substances, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

The following facts are pertinent to our decision. On February 23, 2009, Senior Corrections Officer Douglas Shaw (Shaw) searched Dixon's cell. In the middle of the cell, Shaw found a large plastic container inside a bucket that was covered with clothing to conceal its contents. Shaw determined that the container was filled with a suspected alcoholic beverage. Shaw confiscated the container and took it to the armory. Shaw issued a disciplinary report, charging Dixon with making or possessing intoxicants, alcoholic beverages or other prohibited substances. Dixon was placed in pre-hearing detention.

Sergeant G. Poretti (Poretti) issued a special incident report, in which he noted that "[h]ooch" had been found during a routine search of Dixon's cell. Poretti stated that he examined the confiscated container, which contained a liquid substance consisting of fruit and rice. Poretti noted that the liquid had a strong alcoholic odor. He wrote that, based on his experience, the liquid was an intoxicant.

Sergeant Branca (Branca) investigated the charge. He noted that Dixon said that the mixture in the container was "just orange and pineapple juice" and it could not be fermented because it did not contain any rice. Branca determined that the charge had merit and referred the matter for a hearing. In his report, Branca noted that the container with the prohibited substance had been taken to the armory.

The hearing took place on February 25, 2008. At Dixon's request, counsel substitute was assigned to assist him at the hearing. Dixon declined to enter a plea. He did not request any witnesses, nor did he seek to confront any adverse witness. The hearing officer found Dixon guilty of the charge, noting in his report that he relied on Officer Shaw's report, as well as his own inspection of the physical evidence in the armory, which had "a strong smell of a fermented liquid and does constitute an alcoholic beverage."

As sanctions, the hearing officer imposed ten days of detention; ninety days of administrative segregation; loss of sixty days of commutation time; and confiscation of the prohibited substance. Dixon also was sanctioned pursuant to the NJDOC's "zero tolerance policy" with permanent loss of contact visits; 365 days of urine monitoring; and assignment to a treatment program.

Dixon filed an administrative appeal. On February 27, 2009, the assistant superintendent of NJSP affirmed the hearing officer's decision. This appeal followed. Dixon argues that he was denied due process because of the agency's use of "improper evidence[.]" Dixon asserts that the Department failed to establish that the evidence seized in his cell and placed in the prison armory was the same as the evidence inspected by the hearing officer.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

In determining whether the agency's action is arbitrary or unreasonable, we consider: 1) whether the agency's decision offends the State or Federal Constitution; 2) whether the action violated express or implied legislative policies; 3) whether there is substantial credible evidence in the record to support the agency's findings; and 4) whether the agency clearly erred in reaching a conclusion unsupported by relevant factors. Ibid. (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); In re Larsen, 17 N.J. Super. 564, 570 (App. Div. 1952)).

We are satisfied from our review of the record that there is sufficient credible evidence in the record to support the NJDOC's determination that Dixon committed prohibited act *.551. We find no merit in Dixon's assertion that the NJDOC failed to present sufficient evidence to establish that the liquid mixture inspected by the hearing officer was the same substance found by Shaw in Dixon's cell and placed in the armory.

We note that Shaw stated in his report that he placed the large plastic container that he confiscated in the armory. Shaw wrote that the container contained a prohibited substance. In his report, Poretti noted that he inspected the confiscated container and determined that it contained intoxicants. Branca also noted in his report that the container and the substance was taken to the armory. The hearing officer recorded that he had inspected the evidence in the armory.

In our judgment, the evidence is sufficient to support the NJDOC's determination that Dixon wrongfully made or possessed an intoxicating substance, in violation of N.J.A.C. 10A:4-4.1(a). Dixon's arguments to the contrary are without sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E).

Affirmed.

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A-4256-07T3

January 28, 2010