GERALD LOVELACE 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NOT FOR PUBLICATION WITHOUT THE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

GERALD LOVELACE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________

March 27, 2015

Submitted March 16, 2015 Decided

Before Judges Simonelli and Guadagno.

On appeal from the New Jersey Department of Corrections.

Gerald Lovelace, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Gerald Lovelace appeals from the January 16, 2013 final agency decision of respondent New Jersey Department of Corrections (DOC), which affirmed the decision of a hearing officer finding Lovelace guilty of, and imposing disciplinary sanctions for, the prohibited act .701, unauthorized use of mail or telephone, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Lovelace is serving a five-year term of imprisonment for a conviction for unlawful possession of a handgun. He is presently incarcerated at Bayside State Prison.

N.J.A.C. 10A:18-2.7(b) prohibits the DOC from opening an inmate's outgoing legal correspondence if the inmate identifies it as "legal mail" on the envelope or if the envelope clearly indicates that it is being sent to a legal correspondent, as defined by N.J.A.C. 10A:1-2.2 and N.J.A.C. 10A:18:3.2. On January 9, 2013, Lovelace addressed "legal mail" to "Annamarie Marenco, Esq." of "Marenco & Marenco," and he identified the addressee as his "lawyer" and requested "legal postage." Lovelace also addressed "legal mail" to an individual named Cali Johnson as his attorney. The DOC learned that Annamarie Marenco is Lovelace's wife, and neither she nor Cali Johnson are attorneys. Accordingly, the DOC charged Lovelace with committing prohibited act .701.

Following the completion of the investigation, on January 10, 2013, the DOC served Lovelace with the disciplinary charge. At the hearing on January 15, 2013, Lovelace requested and was granted counsel substitute, and was offered but declined to call or confront witnesses. He pled not guilty, and requested leniency, claiming that he acted on the advice of a paralegal.

Based on the evidence, the hearing officer found Lovelace guilty of prohibited act .701, and imposed sanctions of fourteen hours of extra duty, ten days' loss of recreation privileges and sixty days' loss of commutation time.

On appeal, appellant raises the following contentions

THE FINAL DECISION OF THE [DOC] SHOULD BE REVERSED BECAUSE IT IS BASED ON PROCEEDINGS THAT VIOLATED APPELLANT'S DUE PROCESS RIGHTS.

a) Evidence is insufficient to support decision.

b) No valid rule or regulation prohibits the property return.

c) The statement of reasons is inadequate.

Our review of the agency's decision here is limited. In re Stallworth, 208 N.J. 182, 194 (2011). In reviewing a final DOC decision, we will defer to the agency's conclusions so long as the decision is not arbitrary or capricious and is supported by substantial credible evidence. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citing 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) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). When reviewing a DOC prison discipline decision, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the DOC followed the regulations adopted to afford inmates due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995).

Further, a prison disciplinary proceeding "'is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.'" Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). However, in such proceedings prisoners have certain procedural due process rights, including a limited right to call witnesses, present documentary evidence and to confront and cross-examine witnesses where necessary "for an adequate presentation of the evidence, particularly when serious issues of credibility are involved[.]" Id. at 529-30.

We are satisfied that Lovelace was afforded all due process protections required by Avant, supra, 67 N.J. at 525-33; that the hearing officer's decision, including the sanctions imposed, was based on substantial evidence that Lovelace committed the prohibited act; and the DOC's decision was not arbitrary, capricious, or unreasonable.

Affirmed.