KENNETH COLLINS v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5327-08T25327-08T2

KENNETH COLLINS,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

 
 

Submitted April 28, 2010 - Decided

Before Judges Graves and J. N. Harris.

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

Kenneth Collins, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Kenneth Collins formerly incarcerated at Kintock-Bridgeton, a residential community release program appeals from the final administrative disciplinary determination of the New Jersey Department of Corrections rendered against him on April 19, 2009. Although originally charged with prohibited act .204A, N.J.A.C. 10A:4-4.1(a).204A ("use by an inmate who is assigned to a Residential Community Program of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff"), Collins was instead found guilty of prohibited act .552A, N.J.A.C. 10A:4-4.1(a).552A ("being intoxicated while the inmate is assigned to a Residential Community Program"). We affirm.

On April 4, 2009, upon his return to Kintock Building No. 1 from an authorized pass, Collins was patted down by a staff member who detected the odor of an alcoholic beverage on Collins's breath. Other staff members were called over to observe Collins and they too smelled the remains of what was believed to be an alcoholic beverage. These staff members also observed Collins swaying, failing to maintain eye contact, slurring his speech, and appearing to have a glazed-over appearance. Believing Collins to be intoxicated, the staff had him transported to South Woods State Prison, where an intake nurse examined him before readmission to the prison and noted that Collins appeared to be moderately inebriated as a result of alcohol ingestion.

The next day, Collins was served with written charges, which resulted in reference to a hearing officer scheduled for April 8, 2009. A counsel substitute was provided to Collins, whereupon appellant chose not to make a statement, offer evidence, or enter a plea on his behalf. After considering the reports of staff members who were present and interacted with Collins at the time of the incident, the hearing officer modified the accusation from prohibited act .204A to .522A, and found Collins guilty of the amended charge. Sanctions were imposed as follows: ten days detention; sixty days loss of commutation credit; ninety days' administrative segregation with sixty days suspended; and thirty days loss of recreation privileges.

Collins appealed the disciplinary action to the prison administrator, who upheld the findings related to guilt, but modified the sanctions, eliminating the ten days detention if Collins remained violation free for at least sixty days. This appeal followed.

Collins raises several issues before us that he did not argue during the administrative proceedings. For example, he now complains that he was denied the opportunity to develop or utilize exculpatory evidence when prison officials allegedly refused to administer a breathalyzer test, and he was also denied the right to review videotape recordings from the Kintock facility taken at the time he arrived. On appeal, Collins further criticizes the advice he received from his counsel substitute who allegedly advised him not to make any statements at the hearing and not to enter a plea. We have reviewed all of Collins's appellate arguments indulgently and are convinced that they lack sufficient merit to warrant full discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

At the outset we acknowledge that "[c]ourts have a limited role in reviewing a decision of an administrative agency." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Id. at 579-80. We find that the agency's decision in this case was not arbitrary, capricious or unreasonable given the facts presented, and conclude that the decision was supported by substantial credible evidence in the record as a whole.

The failure to raise the issues of the breathalyzer and videotape evidence in the administrative tribunal precludes the furthering of those arguments on appeal. As these issues were not originally presented in the disciplinary proceeding, they are not properly before us. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

Substantively, there is more than ample proof in the record to furnish substantial evidence of Collins's guilt. McDonald v. Pinchak, 139 N.J. 188, 201 (1995). Procedurally, we are satisfied that Collins received at least the minimum level of due process owed to him at a prison disciplinary hearing. Avant v. Clifford, 67 N.J. 496, 528-33 (1975).

 
Affirmed.

(continued)

(continued)

5

A-5327-08T2

May 14, 2010