KEVIN BROOKS 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NOT FOR PUBLICATION WITHOUT THE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-2091-09T2

KEVIN BROOKS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________

May 23, 2011

Submitted: May 11, 2011 Decided:

Before Judges Axelrad and Lihotz.

On appeal from the New Jersey Department of Corrections.

Kevin Brooks, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Megan J. Harris, Deputy Attorney General, on the brief).

PER CURIAM

Kevin Brooks appeals from a final determination of the Department of Corrections (DOC), adjudicating him guilty of prohibited act *.204, use of prohibited substances, as delineated in N.J.A.C. 10A:4-4.1. The hearing officer imposed sanctions of 15 days detention, 180 days administrative segregation, 180 days loss of commutation time, and 180 days of urine monitoring. Following an administrative appeal, an assistant superintendent of the DOC upheld the decision of the hearing officer finding it based on substantial evidence and in compliance with the procedural requirements for inmate discipline. The superintendent also noted that all applicable reports were considered in the appeal. Appellant then filed an appeal of the agency's decision.

On appeal, appellant argues he was denied due process because: (1) of the delay in charging him with the offense; (2) the custodial staff did not have probable cause for ordering a urinalysis; (3) the officer who performed the test was not properly trained; and (4) the decision to transfer him after his initial hearing deprived him of the opportunity to properly prepare a defense with his counsel substitute. We reject appellant's arguments and affirm.

Based on a tip from a confidential informant that appellant and other inmates were smoking marijuana, appellant was ordered to provide a urine specimen on September 23, 2009. Appellant did so and signed a Continuity of Evidence form, acknowledging the sample was closed, sealed, and labeled in his presence. On November 13, 2009, the prison received final results from the laboratory, confirming the positive presence in appellant's specimen of THC, a substance in marijuana. On the same day, appellant was informed of the disciplinary charge and provided with a copy of the disciplinary report.

During the investigation, appellant declined to make a statement or name any witnesses. He also declined the assistance of counsel substitute. Nevertheless, appellant was represented at the disciplinary hearing on November 18, 2009 by counsel substitute. Appellant provided the following statement: "After they took my urine, they had me take an on the spot urine. Now they're saying they found it." His counsel substitute stated that appellant believed "the mishandling of the urine sample may have negatively impacted the results." Appellant declined to call any witnesses and to confront adverse witnesses. The hearing officer found no evidence of mishandling or loss of appellant's urine sample. Because appellant tested positive for THC, a prohibited substance, the hearing officer found there was substantial evidence to support the charge.

In his administrative appeal, appellant simply argued leniency, stating he "messed up" and was "truly sorry." He did not assert any procedural deficiencies or even implicitly reference any of the arguments made on appeal.

We first address appellant's due process challenges. In a disciplinary proceeding while imprisoned, an inmate is not entitled to the full panoply of rights as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975); see also Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, and, in certain circumstances, the assistance of counsel substitute. Avant, supra, 67 N.J. at 525-33.

Here all of the procedural requirements were met. Appellant provides no substantiation for any of his challenges. The urine sample was required after a corrections officer received probable cause from a confidential informant. Proper procedures were followed for collection of the urine sample; appellant acknowledged in writing that the urine specimen was closed, sealed, and labeled in his presence by the corrections officer. Appellant was charged with the offense immediately after the prison received the final results from the laboratory confirming the presence of a prohibited substance in appellant's urine. Finally, appellant was provided counsel substitute and both he and counsel substitute were afforded the opportunity to present appellant's case to the hearing officer.

We also discern no basis to interfere with the disciplinary adjudication of the agency. Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or is unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (holding the court must uphold agency findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). As there is substantial, credible evidence in the record to support the agency's finding of this disciplinary infraction, there is no basis to disturb that determination.

Affirmed.