JEFFREY HEINZELMAN 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NOT FOR PUBLICATION WITHOUT THE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

JEFFREY HEINZELMAN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________

February 10, 2014

Submitted February 4, 2014 Decided

Before Judges Espinosa and O'Connor.

On appeal from the New Jersey Department

of Corrections.

Jeffrey Heinzelman, appellant pro se.

John J. Hoffman, Acting Attorney General,

attorney for respondent (Lisa A. Puglisi,

Assistant Attorney General, of counsel;

Justin Conforti, Deputy Attorney General,

on the brief).

PER CURIAM

Jeffrey Heinzelman, a former inmate at Bayside State Prison, appeals from a final decision of the Department of Corrections (DOC) finding him guilty of committing prohibited act *.205, misuse of authorized medication, N.J.A.C.

10A:4-4.1(a). On appeal, Heinzelman contends he was deprived of due process during the prison disciplinary hearing. We affirm.

On July 22, 2012, the medical staff at the prison issued to Heinzelman ninety capsules of Neurontin, a keep-on-person1 medication. Two days later, a Sergeant DiPalma conducted a routine search of Heinzelman's property and discovered he had only sixty-nine pills in his possession. By the time of the search, Heinzelman should have used only nine pills. Heinzelman was then charged with the aforementioned offense.

When the hearing commenced, Heinzelman pled not guilty and assigned counsel substitute. The hearing was adjourned so a psychiatric evaluation of Heinzelman could be conducted.

When the hearing resumed, Heinzelman waived his right to confront Sergeant DiPalma, whose disciplinary report setting forth what was discovered during the search, was considered by the hearing officer. Further, Heinzelman did not refute he signed a document acknowledging he received ninety Neurontin pills from the medical staff, and failed to account for the twelve missing pills during the hearing. Heinzelman was offered but declined the opportunity to call or cross-examine any witnesses, a decision conceded, in writing, by his counsel substitute.

The hearing officer found Heinzelman guilty of misusing authorized medication and imposed fifteen days of detention (with credit for time served), 270 days of administrative segregation, a loss of 270 days of commutation time, a permanent loss of contact visits, and 365 days of urine monitoring. The hearing officer's findings were administratively affirmed.

On appeal, Heinzelman contends he was deprived of due process because a request to adjourn the hearing to enable him to gather evidence, as well as call two witnesses during the hearing, was denied, entitling him to a reversal.

Our review of an administrative agency decision is limited. Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190-191 (App. Div. 2010). Absent a clear showing that a decision is "arbitrary, capricious, or unreasonable, or that it lacks fair support in the record, an administrative agency's final quasi-judicial decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance." Circus Liquors, Inc. v. Governing Body of Middletown Tp., 199 N.J. 1, 9 (2009). If the findings of fact are supported by substantial credible evidence in the record and are not so wide of the mark as to be manifestly mistaken, the court must defer to the agency decision. Tlumac v. High Bridge Stone, 187 N.J. 567, 573-74 (2006) (citing Bradley v. Henry Townsend Moving & Storage Co., 78 N.J. 532, 534 (1979)); Close v. Kordulak Bros., 44 N.J. 589, 598-99 (1965).

Heinzelman's contentions are unfounded. Our search of the record reveals he declined to exercise his right to call and confront witnesses at the hearing, a fact confirmed by his own counsel substitute. Further, there is no mention in the record of any request for an adjournment that was denied. There is no basis to his claim his due process rights were violated.

There was sufficient credible evidence to support the finding Heinzelman misused his medication.

Affirmed.

1 Inmates are authorized to possess certain medications for self-administration, referred to as keep-on-person or KOP. See

N.J.A.C. 10A:16-15.1 to -15.8.