CALVIN THOMAS 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NOT FOR PUBLICATION WITHOUT THE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-0916-10T4

CALVIN THOMAS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________

December 1, 2011

Submitted November 16, 2011 - Decided

Before Judges Waugh and St. John.

On appeal from the New Jersey Department of

Corrections.

Calvin Thomas, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Calvin Thomas appeals from the final administrative decision of the Department of Corrections (DOC) imposing discipline for possession of a mobile phone. We affirm.

Thomas is an inmate confined at Northern State Prison in Newark. On August 26, 2010, during a routine search, a corrections officer found a mobile phone under a prayer rug on the top bunk of Thomas's cell. The top bunk was the one used by Thomas. He was charged with disciplinary infraction *.009, N.J.A.C. 10A:4-4.1(a), which includes possession of an unauthorized communications device.

During the ensuing investigation, Thomas asked that a witness statement be taken from his cellmate. The cellmate's statement at that time reflects that he had no knowledge of the mobile phone, although he changed his position after Thomas's administrative appeal was denied.

The disciplinary hearing was held on August 30, 2010. The hearing officer found Thomas guilty and imposed sanctions, consisting of detention for fifteen days, with credit for time served, 365 days of administrative segregation, loss of 365 days of commutation credit, loss of phone privileges for 365 days, and permanent loss of contact visits.

Thomas filed an administrative appeal, and the prison administrator upheld the decision of the hearing officer on September 2, 2010. This appeal followed.

Thomas raises the following issues on appeal:

POINT I: THE HEARING OFFICER'S FINDING OF GUILT WAS CONTRARY TO THE DEPARTMENT OF CORRECTIONS POLICIES WHEN IT COMES TO CONTRABAND FOUND IN A MULTI-LOCK CELL.

POINT II: THE DOC'S UPHOLDING THE DISCIPLINARY HEARING OFFICER'S FINDING OF GUILT WAS NOT BASED UPON SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AS A WHOLE THAT I COMMITTED N.J. ADMIN. CODE TITLE 10A:4-4-1(A) PROHIBITED ACT *.009 POSSESSION OF ELECTRONIC EQUIPMENT (CELLULAR TELEPHONE).

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

We have considered Thomas's arguments in light of the record and applicable law. We conclude his arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). DOC must facilitate an informal hearing to ensure that disciplinary findings are based upon verified facts and the use of discretion is informed by accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that DOC's regulations for disciplinary hearings "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.

Our review of the record leads us to conclude that the agency decision was supported by substantial evidence and that DOC's procedures comported with the appropriate level of due process. Avant, supra, 67 N.J. at 530; N.J.A.C. 10A:4-9.15(a). Substantial evidence is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).

The hearing officer's decision was based upon his evaluation of the credible evidence. The mobile phone was found with items belonging to Thomas, who denied any knowledge of the phone. He apparently sought to shift blame to his cellmate, who denied any knowledge in his written statement. Based on the hearing officer's opportunity to judge Thomas's credibility, we must affirm the decision.

Thomas's reliance on Figueroa v. New Jersey Department of Corrections, 414 N.J. Super. 186 (App. Div. 2010), is misplaced. In that case, the inmate never had actual possession of the marijuana, which was contained in a package of tobacco a corrections officer had obtained from another inmate on Figueroa's behalf. Id. at 189. We overturned the discipline because there was no proof that Figueroa knew there was marijuana in the tobacco container. Id. at 193. Here, as noted, the mobile phone was found among Thomas's belongings in his cell.

We note that Thomas obtained an exculpatory statement from his cellmate, but only after Thomas's administrative appeal had been denied. We cannot consider on appeal matters that were not before the decision maker. See R. 2:5-4 (scope of record on appeal); Middle Dep't Inspection Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977) (refusing to consider evidence improperly submitted at the appellate level), certif. denied, 76 N.J. 234 (1978).

We are satisfied that the procedures followed by DOC comply with the requirements of Avant and that the administrative decision was supported by substantial evidence in the record. Consequently, we affirm the decision.

Affirmed.