MIKE MCKAY 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NOT FOR PUBLICATION WITHOUT THE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-0

MIKE MCKAY,

Defendant-Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Plaintiff-Respondent.

November 15, 2013

Submitted November 6, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from New Jersey Department of Corrections.

Mike McKay, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).

PER CURIAM

Mike McKay is an inmate currently confined in Northern State Prison. He appeals from the final agency decision of the Department of Corrections (DOC) finding that he committed prohibited act *.803/*.203 attempting to possess or introduce "any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff," in violation of N.J.A.C. 10A:4-4.1(a) and imposing disciplinary sanctions. We affirm.

On October 16, 2011, McKay was visited at the prison by Shanta Chinn, who was listed on his visit card as the mother of his child. While Chinn waited to enter the prison, a guard smelled marijuana emanating from her person. A drug-sniffing dog was brought in, and gave a positive alert for marijuana. Chinn was found to be in possession of a large quantity of drugs, including heroin and marijuana, and a cellular subscriber identification module (SIM) card. She was detained, interviewed, and placed under arrest. During her interview, Chinn admitted that she entered the prison facility with the drugs and the SIM card intending to give them to McKay, with whom she communicated by cell phone. An investigation revealed that Chinn had also visited McKay the previous day.

On October 18, 2011, McKay received notice of the disciplinary charge. A hearing on the charge was originally scheduled for October 19, 2011. McKay pled not guilty and requested the appointment of counsel substitute, which was granted. The hearing was then adjourned numerous times while awaiting receipt of a laboratory report. On January 19, 2012, the lab report confirmed that the substance seized from Chinn was heroin.

The hearing concluded on February 8, 2012. At the close of the evidence, Hearing Officer Nolley found McKay guilty of the charge and sanctioned him to 15 days detention with credit for time served; 365 days loss of commutation time; 365 days administrative segregation; 365 days of urine monitoring; permanent loss of contact visits; 90 days loss of visitation privileges; and 90 days loss of telephone privileges.

McKay filed an administrative appeal. On February 16, 2012, the DOC upheld Nolley's decision, finding that it was based on substantial evidence. McKay filed an appeal with this court. On October 22, 2012, the DOC's motion for temporary remand was granted.

At the remand hearing on November 20, 2012, McKay, again represented by counsel substitute, requested a summary of a confidential investigation report, and a copy of his visit card listing Chinn as his visitor. The hearing was adjourned to the following day, when McKay further requested copies of non-confidential investigation reports, and the visit logs for October 15 and 16, 2011. These requests were granted, and the items entered into evidence at the rehearing. On November 23, 2012, McKay requested the right to confront Investigator Kubik of the Special Investigations Division (SID). Hearing Officer Russell denied this request, stating "SID Kubik was not a witness to the events resulting in [McKay's] receipt of prohibited act *803/*203." McKay further asked to provide a statement for the record, which Russell granted. At the conclusion of the remand hearing, McKay was found guilty of the infraction, and the same sanctions were imposed.

On appeal, McKay variously contends that the finding of guilt was not supported by substantial evidence, that the rejection of his confrontation request denied him due process, and that Hearing Officer Russell should have recused herself at the rehearing. We reject these arguments.

Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable, or 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) (citations omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Nonetheless, prisoners are entitled to certain limited due process protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff, a limited right to call witnesses, the assistance of counsel substitute, and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995). We are satisfied that McKay was afforded all of the due process protections he was entitled to receive.

"A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). "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) (quoting In re Pub. Serv. Gas & Elec. Co., 35 N.J. 358, 376 (1961).

McKay argues, as he did before the hearing officer, that he was unaware that Chinn planned to visit him that day, nor did he have any knowledge that she would bring the prohibited items. He points to a written statement provided by Chinn on May 3, 2012, more than six months after the incident, essentially retracting her original version. In this statement, Chinn now contended that she was under the influence of drugs on the date of the incident, and that "McKay had no knowledge that I was coming to visit him, nor did he have any knowledge that I was in possession of (CDS)."

We are not persuaded by McKay's argument, as substantial evidence in the record supports the conclusions of the hearing officer. There is no question that Chinn was caught concealing contraband as she entered the prison to visit McKay. In her findings, Russell noted that the investigation revealed that Chinn had visited McKay for two hours the day before, which provided them "with ample opportunity to plan/solidify the plan to introduce prohibited substances into the institution at their next visit." Russell rejected as incredible the assertion that Chinn "attempted to enter a state prison with the quantity of narcotics [depicted in photographs introduced in evidence] as a 'surprise' for [] McKay." Rather, she found it more reasonable to believe that McKay and Chinn "planned and mapped out a strategy" to bring the prohibited substances into the prison during their meeting one day earlier. Additionally, the hearing officer questioned the authenticity of Chinn's later statement denying McKay's involvement. That statement was inconsistent with Chinn's earlier admissions, made contemporaneously with her apprehension at the prison facility. The hearing officer clearly did not find McKay's claimed lack of knowledge or complicity credible. We find no basis to disturb the result, as we are satisfied that both the hearing officer's decision and the DOC's ultimate determination are sufficiently grounded on substantial credible evidence. See Henry, supra, 81 N.J. at 579-80.

Further, we reject McKay's argument that refusal of his request for confrontation of Investigator Kubik denied him any due process right. N.J.A.C. 10A:4-9.14 provides a hearing officer broad discretion in determining the scope of confrontation and cross-examination in prison disciplinary appeals. Negron v. N.J. Dep't of Corr., 220 N.J. Super. 425, 430 (App. Div. 1987). In denying this request, Russell noted that it was likely to produce duplicative testimony, and that Kubik was not a witness to the October 16, 2011 incident. Moreover, McKay requested, and was granted, a summary of Kubik's confidential investigation report. McKay was also offered, but declined, the opportunity to call witnesses on his behalf. He neither asserts nor provides proof that the substances involved were something other than heroin or marijuana, nor has he explained the basis of his confrontation request or identified the facts he sought to challenge through Kubik's testimony. We thus conclude the hearing officer did not abuse her discretion in denying confrontation.

Finally, we reject as meritless defendant's bald assertion that "Russell should have recused herself due to improprieties in the original hearing." McKay has failed to specify these alleged improprieties, other than perhaps adjournments that were granted pending receipt of the lab report. Nor does the record reflect that Russell played any substantive role in the determinations made at the original hearing that would render it inappropriate for her to preside over the rehearing.

To the extent that we have failed to address any of appellant's remaining contentions, we find that they lack sufficient merit to be discussed in this written opinion. R. 2:11-3(e)(1)(E).

Affirmed.