PHILLIP A. DIXON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

This case can also be found at 199 N.J. 517, 973 A.2d 384.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5240-06T25240-06T2

PHILLIP A. DIXON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________

 

Submitted October 29, 2008 - Decided:

Before Judges Rodr guez and Waugh.

On appeal from the Final Agency Decision of the Department of Corrections.

Phillip A. Dixon, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Appellant Phillip A. Dixon appeals from the imposition of discipline by the New Jersey Department of Corrections (DOC) for possession of an unauthorized cassette player and cassette tape. We affirm.

Dixon is serving a life sentence, with thirty-two years and six months of parole ineligibility, in New Jersey State Prison. During a unit-wide search of cells on December 19, 2005, a Sony cassette player and a single cassette tape were found in Dixon's cell. Although the New Jersey State Prison Inmate Handbook permits inmates to possess radios, it specifically prohibits "[t]ape recorders" and "tapes."

On December 20, 2005, Dixon was charged with violation of N.J.A.C. 10A:4-4.1, specifically prison disciplinary infraction .210 ("possession of anything not authorized for retention or receipt by an inmate"). Dixon was placed in pre-hearing detention.

A disciplinary hearing was scheduled for December 21, 2005, but was adjourned due to a lockdown at the facility. On December 23, 2005, Dixon appeared before a hearing officer, but the hearing was postponed on that day and on several other occasions to permit further investigation.

The disciplinary hearing was held on January 3, 2006, before another hearing officer. At that time, Dixon was represented by an attorney substitute. He declined the opportunity to call witnesses or engage in in-person confrontation of adverse witnesses. Although the disciplinary report states that Dixon pled guilty, a closer reading of the record demonstrates that, while Dixon admitted that he had possessed the cassette player and tape, he actually pled not guilty. Dixon took the position that he was being subjected to double jeopardy because the same cassette player had previously been seized and returned to him. He also argued that it had been purchased from the prison store.

The hearing officer found Dixon guilty. The sanction imposed was confiscation of the cassette player and tape, as well as ten days detention. Dixon received credit for time spent in pre-hearing detention. Dixon appealed the determination internally. The decision was affirmed by an assistant superintendent. This appeal followed.

Dixon raises the following issues on appeal:

POINT I

APPELLANT WAS DENIED DUE PROCESS BY BEING CHARGED WITH THE SAME OFFENSE HE WAS PREVIOUSLY ACQUITTED OF, IN VIOLATION OF THE CODE

POINT II

THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL EVIDENCE

POINT III

APPELLANT WAS DENIED DUE PROCESS AS HIS HEARING WAS CONDUCTED BY TWO DIFFERENT HEARING OFFICERS

POINT IV

APPELLANT WAS DENIED DUE PROCESS BY THE ABSENCE OF A VERBATIM RECORD

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). 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). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

We have considered each of Dixon's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

We note initially that two things are clear from the record: (1) Dixon possessed the Sony cassette player and cassette tape in question on December 19, 2006; and (2) such possession was specifically prohibited by the Prisoner Handbook. Consequently, the finding of a violation of prison disciplinary infraction .210, N.J.A.C. 10A:4-4.1, was supported by substantial evidence in the record.

Dixon argues that we should reverse the discipline imposed by the DOC because he had previously possessed the same player and was acquitted. In essence, he contends that he has been subjected to double jeopardy by being charged again with the same offense.

The record contains a May 31, 2002, disciplinary charge against Dixon involving the possession of a Sony Walkman with cassette and sixteen cassette tapes. We find nothing in the record with respect to the resolution of that charge. Assuming, however, that Dixon possessed the same player in May 2002, which is not at all clear from the record, and was acquitted, which is uncertain, he is nevertheless not being charged a second time with the identical offense. The two disciplinary charges arose from searches that took place three years apart and charge possession of contraband on different dates. He is not here being disciplined for the events of May 2002. Dixon cites no principle of law to support his apparent assertion that having once been acquitted of possessing contraband, he can never be charged with possessing the same item of contraband on another occasion. Although, Dixon also argues that the machine at issue was sold by the prison itself, we find insufficient support for that proposition in the record.

We also reject Dixon's argument that several hearing officers conducted the disciplinary hearing against him. While it does appear that more than one hearing officer participated in aspects of the disciplinary proceedings, the record is quite clear that only one participated in the actual evidentiary hearing. Finally, we find no grounds for reversal in the DOC's decision not to record the hearing or provide a verbatim record. See McDonald v. Pinchak, 139 N.J. 188, 201-02 (1995).

Based upon our review of the entire record, we find that the due process protections required by Avant v. Clifford, 67 N.J. 496, 525-33 (1975), were afforded to Dixon in this case. The decision of the DOC was not arbitrary, capricious, or unreasonable, Henry, supra, 81 N.J. at 579-80, but instead was supported by substantial evidence in the record. Jacobs v. Stephens, 139 N.J. 212, 222 (1995). Accordingly, we affirm the decision of the DOC.

Affirmed.

 

We grant Dixon's application to supplement the record and have considered the supplemental material in reaching our decision.

It appears that the charge was somewhat different, in that the May 31, 2002, disciplinary report alleges prohibited act .452 ("using any equipment or machinery which is not specifically authorized").

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A-5240-06T2

November 12, 2008