ANTHONY 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NOT FOR PUBLICATION WITHOUT THE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-3547-09T4

ANTHONY THOMAS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________________

July 25, 2011

 

Submitted April 5, 2011 - Decided

 

Before Judges Carchman and Messano.

 

On appeal from the New Jersey Department of Corrections.

 

Anthony Thomas, appellant pro se.

 

Paula T. Dow, Attorney General, attorney for respondent (Beverley A. Lapsley, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Anthony Thomas, an inmate at East Jersey State Prison in Rahway, appeals from the final decision of the Department of Corrections (DOC) imposing disciplinary sanctions for violating N.J.A.C. 10A:4-4.1(a), *.009, "possession . . . [of] an electronic communication device," a cell phone. In a single point on appeal, Thomas contends that DOC's decision was not supported by substantial evidence. See N.J.A.C. 10A:4-9.15(a) ("A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."). We have considered the argument raised in light of the record and applicable legal standards. We affirm.

Thomas shared a cell with another inmate, Tracy Jones. On December 7, 2009, while officers were searching the cell, Jones handed them a cellular phone and charger. Jones provided a statement, acknowledging that he was "the owner of the cell phone" and Thomas "didn't have any knowledge of the phone nor did he make any calls." Jones supplied the number of the phone, as well as the numbers of his mother and girlfriend. He claimed to have paid $450 for the phone approximately seven months earlier.

Charges against Thomas were "postponed" until a forensic investigation of the phone could be conducted. That investigation revealed numerous calls were placed to a number registered to Sonya Palmer, a woman designated on Thomas's IPIN list as a friend.1 Palmer was not on Jones's IPIN list.

DOC conducted further investigation and spoke to Jones, who had already pled guilty to the *.009 infraction. Jones acknowledged knowing Palmer for four years, as Thomas claimed, but denied she was on his visitor list, as Thomas also claimed. However, Jones "would not write a statement indicating that he made the calls to Palmer."

The disciplinary hearing against Thomas proceeded on February 23, 2010. He was provided with counsel substitute but called neither Jones nor any other witnesses; he declined the opportunity for confrontation. Thomas claimed that Jones introduced Palmer to him and that he was writing Palmer, but Thomas denied ever calling her. He relied upon the initial statement Jones made to the DOC investigators.

The hearing officer upheld the charge and imposed the following discipline: fifteen days detention; 365 days administrative segregation; loss of 365 days of commutation time; 365 days of urine monitoring; permanent loss of contact visits; and loss of phone privileges for 95 days. Thomas administratively appealed the findings and penalty imposed. The Assistant Superintendent concluded: "The facts in this matter are clear and the decision of the Hearing Officer was based upon substantial evidence." He upheld the sanctions imposed, and this appeal followed.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quotations omitted). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (second alteration in original) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We have noted in the past that the Legislature has provided DOC with broad discretion in all matters regarding the administration of a prison facility, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).

Thomas argues that the hearing officer's factual findings were "categorically disproven" by the initial statement Jones gave to investigators. He contends that "the fact that Jones did not further exculpate [him] is a distortion of [the] obvious and does not provide substantial evidence of guilt."

When the record is viewed in its entirety, however, the argument ignores the reasonable inferences to the contrary. Palmer's phone number was on Thomas's IPIN list, not Jones's list. Palmer was listed as Thomas's friend on that list and, contrary to Thomas's claim, she did not appear on Jones's visitor list. Although Jones initially denied that Thomas used the phone, when confronted with Palmer's name and number, Jones, who had already admitted using the phone and pled guilty to the charge, refused to admit he ever called Palmer. At the hearing, Thomas did not call Jones as a witness.

Based on this evidence and the reasonable inferences available, the hearing officer was entitled to conclude that Thomas placed the numerous phone calls to Palmer that appeared on the forensic investigation report of the phone's usage. We are convinced that the charge was supported by substantial evidence, and DOC's decision was not arbitrary, capricious or unreasonable.

Affirmed.

1 The IPIN list is a listing of phone numbers, prepared by the inmate, designating those individuals as persons from whom the inmate wishes to receive calls. Those calls, with the exception of those received from the inmate's attorneys, are subject to recordation by DOC.