RANDY CRAWFORD v. DEPARTMENT OF CORRECTIONS

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6258-08T1

RANDY CRAWFORD,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

December 3, 2010

 

Submitted November 16, 2010 - Decided

 

Before Judges Carchman and Graves.

 

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

 

Randy Crawford, 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 Randy Crawford, an inmate at East Jersey State Prison, appeals from a final decision of the Department of Corrections (DOC), finding him guilty of two counts of prohibited act *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate. N.J.A.C. 10A:4-4.1(a). As a result of appellant's conviction, the hearing officer sanctioned appellant to consecutive terms of 15 days detention on each count with a credit for time served, 365 days of administrative segregation on each count, 365 days loss of commutation time on each count, together with permanent loss of contact visits, a referral to the prosecutor's office, confiscation of the phones, and one year of loss of phone privileges. Appellant appeals. We remand to the DOC for findings as to the credibility of a statement offered by appellant's cellmate.

These are the relevant facts. On June 2, 2009, during a search of Crawford's double occupancy cell, Senior Corrections Officer Egan located a Pantech cellular telephone and a Motorola cellular telephone, along with their respective chargers, inside a word processor. Crawford's inmate number was etched and printed on the cover of the word processor. The cellular telephones and chargers were confiscated and placed in the Special Investigations Division evidence locker.

Crawford was charged with two *.009 disciplinary infractions, one for each cellular telephone and corresponding charger found inside his word processor.1 Sergeant Erven investigated the disciplinary charges and referred them for a disciplinary hearing. On June 5, 2009, disciplinary hearing Officer McGovern found Crawford guilty of both *.009 charges.

During the pendency of these charges, appellant's cellmate, Jabbar Spears, signed a statement in which he said:

I Jabbar Spears secretly hid a cellphone inside of inmate Randy Crawford #249939 type writer, without him having knowledge of me doing so. Inmate Randy Crawford never knew I had the 3 phones. Cause one phone I use to hide in my jock athletic supporter.

 

s/ Jabbar Spears #278138/801415B

 

Following his initial adjudication, appellant filed an administrative appeal. The associate administrator rescinded the decision of the hearing officer and ordered a new hearing. She added:

A new hearing is ordered to provide appellant the opportunity to present evidence not considered at the initial hearing. Request for polygraph is denied at this time as issues of credibility can be addressed at the hearing.

 

At the subsequent hearing, the Spears statement was presented to the hearing officer. Following the hearing, appellant was again found guilty. In his summary of the evidence, the hearing officer noted the Spears statement but made no determination as to the credibility of the statement and its impact upon the defenses raised. Appellant filed an unsuccessful administrative appeal, and this appeal followed.

Our standard of review of agency decisions is well-settled. Unless a court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling will not be disturbed. In re Carter, 191 N.J. 474, 482 (2007); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); In re Martinez, 403 N.J. Super. 58, 75 (App. Div. 2008). We will give deference to such decision, unless it is not only arbitrary and capricious but unsupported by substantial credible evidence in the record as a whole. Carter, supra, 191 N.J. at 482; In re Distribution of Liquid Assets, 168 N.J. 1, 10-11 (2001). Accordingly, we must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

It is not our function "'to substitute [our] independent judgment for that of [an] administrative' agency," such as the Department, "'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (alteration in original) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

Only when the agency's findings are clearly mistaken and "'so plainly unwarranted that the interests of justice demand intervention and correction'" should a reviewing court should "'make its own findings and conclusions.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

Our obligation to defer to the expertise and findings of the agency is tempered by a similar obligation by the agency to make appropriate findings as to the critical issues raised during the hearing process. "[O]ur appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). We will not rubberstamp an agency's decision, Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000); rather, our function is "to engage in a 'careful and principled consideration of the agency record and findings.'" Ibid.(quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.85, 93 (1973)).

The critical issues here were the bona fides and credibility of Spears' statement that the cellphones were his and whether appellant had knowledge of their placement in appellant's word processor. In fact, the matter was remanded by the agency itself to allow appellant to present additional evidence, presumably the Spears' statement.

While the DOC asserts in its brief that the hearing officer made a determination that the Spears' statement was not credible, our reading of the record fails to reveal any such explicit finding. There are references by the hearing officer to the statement but no determination that we can discern as to the critical issue of credibility. This is especially relevant as Spears was apprehended earlier with instructions regarding the use of the cellphones and pled guilty to related offenses regarding these phones.

We conclude that the matter must be remanded for further findings by the agency as to the Spears' statement.

As to the other issues raised, we find no abuse of discretion in the agency's denial of appellant's request for a polygraph examination as that determination resides within the discretion of the agency. SeeN.J.A.C.10A:4-11.4; Ramirez v. Dep't of Corrections, 382 N.J. Super. 18, 23-24 (App. Div. 2005); Johnson v. Dep't of Corr., 298 N.J. Super.79, 83 (App. Div. 1997). We likewise reject appellant's additional claims as without merit.

Reversed and remanded for further proceedings consistent

w

ith this opinion. We do not retain jurisdiction.

1 In addition, Crawford received a third *.009 charge related to a third cellular telephone found in his cell. However, he was found not guilty of this charge.