BELTON BRIMS 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NOT FOR PUBLICATION WITHOUT THE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-2320-10T2

BELTON BRIMS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________

April 10, 2012

Submitted March 13, 2012 - Decided

Before Judges Espinosa and Guadagno.

On appeal from the New Jersey Department of Corrections.

Belton Brims, 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

Belton Brims, an inmate currently incarcerated at New Jersey State Prison (NJSP), appeals from a final administrative decision rendered by the New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act .754, receiving money from another inmate, in violation of N.J.A.C. 10A:4-4.1(a). Brims claims that there was insufficient evidence to support the determination, and that he was denied due process during the hearing. He also challenges the forfeiture of the funds he received for the first time on appeal. For the reasons that follow, we affirm.

I.

On August 30, 2010, the Special Investigations Division (SID) of the DOC received information that several suspicious money orders had been received by NJSP inmates from the same source in Maryland. Further investigation by SID Investigator Dolce revealed that $32,417.81 was deposited into inmate Damen Brown's prison trust account from a source outside the prison on August 12, 2010. Brown transferred $3,222 of these funds to Larry Faison of Suitland, Maryland. Faison purchased three money orders totaling $2,900 and sent them to three other NJSP inmates. One of these money orders, in the amount of $1,000, was sent to Brims and was deposited into his inmate trust account. As a result of Dolce's investigation, a hold was placed on Brims's account on September 8, 2010.

When Brims learned of the hold, he wrote to SID and requested an explanation. On October 7, 2010, Dolce met with Brims and videotaped the interview. When Dolce asked Brims to explain why he received $1,000 from Faison, Brims initially stated, "I plead the fifth." Dolce then explained to Brims the interview was being conducted at his request. Brims then claimed that someone he knew only as "Larry" sent him the money. Brims described Larry as a friend from "the street" but admitted he had not seen Larry since they were "kids" and did not know why Larry sent him the money.

On October 26, 2010, Brims was notified by Dolce that he was being charged with receiving $1,000 from the friend of another inmate who had laundered the money in violation of .754 of N.J.A.C. 10A:4-4.1. That section prohibits:

giving money or anything of value to, or accepting money or anything of value from, a member of another inmate's family or another inmate's friend with an intent to circumvent any correctional facility or Departmental rule, regulation or policy or with an intent to further an illegal or improper purpose

Brims was given a copy of the disciplinary report which alleged:

An investigation has determined that inmate Brims received $1,000 from the friend of inmate Martin #449411. The investigation determined the money was originally sent by inmate Brown #69760 to a civilian who then laundered the money.

The disciplinary report also indicated that the charge was based on "confidential information."

The disciplinary hearing, originally scheduled for October 26, 2010, was adjourned to enable Brims to consult with counsel substitute and prepare his defense and for the hearing officer to review the exhibits and reports.

At a hearing on November 4, 2010, the hearing officer considered Dolce's report; a $1,000 postal money order payable to Brims; a NJSP Business Remit form for $3,225 payable to Larry Faison from inmate Damon Brown; the statements of Brims and his counsel substitute; and a confidential SID report that was not provided to defendant.

The hearing officer found Brims guilty of disciplinary infraction .754 and imposed fifteen days detention, sixty days loss of commutation time, ninety days of administrative segregation and forfeiture of the $1,000.

Brims appealed the finding administratively, claiming the decision was not supported by substantial evidence. The assistant superintendent found that the findings and penalties imposed by the hearing officer were appropriate, but granted Brims's plea for leniency and modified the sanction by suspending the administrative segregation. All other aspects of the determination were upheld. This appeal followed.

II.

Brims claims that the decision of the hearing officer was not based upon substantial credible evidence as there was not an "iota or scintilla of evidence" that he committed the prohibited act.

There was ample proof before the hearing officer that over $30,000 was sent to an inmate from a source outside the prison. That inmate transferred $3,200 of that money to a source outside the prison where it was converted into money orders and transmitted back to three different inmates. Brims presented no reasonable explanation for his receipt of $1,000 from someone he has not seen since childhood. His claim that Faison was a "friend of his from the street" was not supported by the evidence. The evidence also indicated that Faison was acting as an intermediary and was not the original source of the funds.

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). Agency decisions carry with them a presumption of reasonableness. City of Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it 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).

N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." The limited due process rights to which inmates in our prisons are entitled were enumerated by our Supreme Court in Avant v. Clifford, 67 N.J. 496, 525-30 (1975). Brims was afforded all of the Avant due process rights, including written notice of the charges and a prompt hearing. At the hearing, he had the assistance of counsel substitute and was given the opportunity to call witnesses and confront adverse witnesses but declined to do either.

Brims was not denied due process when the hearing officer considered the confidential SID report that he was not given access to. The hearing officer determined that the report was confidential and its disclosure presented a threat to prison security. N.J.A.C. 10A:4-9.15(b) permits the use of confidential information of the type considered here. It provides in pertinent part:

1. In any case in which the Disciplinary Hearing Officer or Adjustment Committee's decision of guilt is based on evidence which includes confidential information, adjudication shall contain:

i. A concise summary of the facts on which the Disciplinary Hearing Officer or Adjustment Committee concluded that the informant was creditable or his or her information reliable; and

ii. The informant's statement (either in writing or as reported) in language that is factual rather than a conclusion, and based on the informant's personal knowledge of the matters contained in such statement.

2. The Disciplinary Hearing Officer or Adjustment Committee is not permitted to disclose the identity of the informant.

The hearing officer provided the following summary of the confidential report to Brims:

C/S [counsel substitute] requests hearing officer view the SID report compiled by Sr. Inv. Dolce which is the basis of the charges 704/754.

Hearing officer reviewed said document in office of SID Sr. Inv. Dolce at NJSP.

After view of report a recent (6pp) administrative investigation was initiated following discovery of a male Larry Faison from Suitland, M.D.

Remit from Brown sent to Faison 8/12/10

3 money orders were then sent to NJSP for $2900 to 3 other inmates.

We find that this summary fully complies with the requirements of N.J.A.C. 10A:4-9.15(b).

Brims claims for the first time on appeal that the forfeiture of the $1,000 in his account ordered by the hearing officer was improper. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves. State v. Robinson, 200 N.J. 1, 19 (2009). Brims does not explain his failure to raise this issue below, but even if he had, the Department's decision should be affirmed as the funds were clearly contraband and confiscation was proper under N.J.A.C. 10A:3-6.6.

A