RANDALL ZANDSTRA 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NOT FOR PUBLICATION WITHOUT THE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-1935-10T4

RANDALL ZANDSTRA,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

February 1, 2012

Submitted January 18, 2012 - Decided

Before Judges Espinosa and Kennedy.

On appeal from the Department of Corrections.

Randall Zandstra, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Emily A. Samuels, Deputy Attorney General, on the brief).

PER CURIAM

Randall Zandstra appeals from a final disciplinary decision of the Department of Corrections (DOC). We affirm.

In 2010, when Zandstra was an inmate at South Woods State Prison, a search of his locked wall locker resulted in the seizure of "nine pieces of paper with spreads and points for NFL games with over and under point totals[,]" and "amounts of commissary items to equal money amounts and one letter containing inmate AKAs and what they owe to the 'store' with dollar amount and commissary items[.]" Zandstra admitted ownership of the items seized by signing an inmate receipt. On October 23, 2010, Zandstra was charged with prohibited act .603, possession of gambling paraphernalia, N.J.A.C. 10A:4-4.1(a)1 and placed in pre-hearing detention.

The disciplinary hearing was conducted on October 29, 2010, after the original hearing date was postponed so a psychiatric report could be obtained and a second postponement for medical reasons. Zandstra was represented by a counsel-substitute, did not testify, offer any witnesses or cross-examine any witnesses. His counsel-substitute requested leniency. The hearing officer found Zandstra guilty of prohibited act .603, relying upon the written report of the officer regarding the discovery of the items described. The hearing officer found the items were "consistent [with] items needed for gambling" and that there was substantial evidence to support the charge. The hearing officer imposed a sanction of ten-days detention, ninety-days administrative segregation and sixty-days loss of commutation time.

On appeal, the Assistant Superintendent determined that the charges were supported by the evidence but modified the discipline, suspending the ninety-days administrative segregation for sixty days.

Zandstra presents the following arguments in this appeal:

POINT I

HEARING OFFICER D. BENEDETTO DID NOT HAVE SUBSTANTIAL EVIDENCE TO FIND APPELLANT RANDALL ZANDSTRA GUILTY OF DISCIPLINARY INFRACTION .603 - POSSESSION OF GAMBLING PARAPHERNALIA, THEREFORE MUST BE REVERSED

POINT II

SINCE THE ORIGINAL HEARING OFFICER CHRISTY RALPH DID NOT COMPLETE THE ADJUDICATION OF APPELLANT'S CASE, AND THE REPLACEMENT HEARING OFFICER D. BENEDETTO ADJUDICATED THE MATTER WITHOUT STARTING ANEW, THE [] GUILTY FINDING CANNOT STAND AND THEREFORE, MUST BE REVERSED

We are satisfied that the arguments presented lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(D) and (E), beyond the following brief comments.

Our review of the DOC's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's 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).

N.J.A.C. 10A:4-9.15(a) requires a finding of guilt to be based upon "substantial evidence that the inmate has committed a prohibited act." All of the evidence relied upon to support the adjudication here was presented to the hearing officer who determined Zandstra was guilty of the prohibited act. There is, therefore, no merit to the argument presented in Point II. We are further satisfied that the adjudication was supported by sufficient credible evidence in the record.

Affirmed.

1 Zandstra was also charged with *.205, misuse of medication, which was downgraded to an on-the-spot-charge. He did not appeal that disciplinary decision.