DONTE GREEN 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NOT FOR PUBLICATION WITHOUT THE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-1019-09T3

DONTE GREEN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________

March 8, 2011

Submitted January 20, 2011 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Department of Corrections.

Donte Green, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Megan J. Harris, Deputy Attorney General, on the brief).

PER CURIAM

Donte Green was an inmate at Southern State Correction Facility in Delmont (Southern State) serving a fourteen-year sentence with a minimum ten-year, eleven-month period of parole ineligibility. He appeals from the final agency decision, which found him guilty of disciplinary infractions *.204,1 use of any prohibited substances, and *.151, setting a fire, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On July 29, 2009, Green was ordered to void a urine sample. Green voided the urine sample and signed a Continuity of Evidence Form, indicating that the sample was closed, sealed, and labeled in his presence. On-site testing of the sample returned a positive reading for a controlled dangerous substance, marijuana, and later laboratory testing confirmed the positive results. Green was subsequently charged with disciplinary infraction *.204, use of any prohibited substances.

On August 28, 2009, while being held in pre-hearing detention for the *.204 charge, Senior Correction Officer Bailey smelled smoke coming from Green's cell and removed Green. Green was the only person in the cell at the time. Officer Bailey and another officer found three burnt, rolled-up pieces of paper near Green's bed area and a burnt fluorescent bulb in the light fixture. Green was charged with committing prohibited act *.151, setting a fire.

Green requested and was assigned counsel substitute. A disciplinary hearing was held on both charges. The hearing officer found Green guilty of both infractions and imposed sanctions. Green appealed to the appeal administrator. While Green's administrative appeal mentioned the *.204 charge as well as the *.151 charge, his explanation for requesting a review did not address the *.204 infraction. The appeal administrator upheld the hearing officer's findings but modified the sanctions imposed. The present appeal followed.

On appeal, Green raised one point for our consideration:

THE DECISION OF THE HEARING OFFICER WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE AND WAS NOT SUPPORTED BY SUBSTANTIAL . . . EVIDENCE IN THE RECORD AND APPELLANT WAS DENIED THE MINIMUM REQUIREMENTS OF DUE PROCESS WHERE THE HEARING OFFICER FAILED TO GAVE AN ADEQUATE STATEMENT OF EVIDENCE RELIED UPON, BEYOND THE OFFICER'S REPORT, IN FINDING APPELLANT GUILTY AND FAILED TO STATE THE REASONS SUPPORTING THE SPECIFIC DISCIPLINARY ACTION TAKEN AGAINST THE APPELLANT.

On the *.204 charge, use of any prohibited substances, Green challenged the chain of custody, alleging that the Continuity of Evidence-Urine Specimen Form indicated that the urine testing was performed at Compound A, when in fact he was located at Compound B. However, the record discloses that the discrepancy stems from the fact that the officer who actually received the specimen was located in Compound A.

Similarly, with regard to the *.151 charge, setting a fire, Green's challenge that he could not have set the fire because his cellmate was present at the time of the alleged infraction and he could not have tampered with the light fixture within a short period of time also lacks merit. The record indicates that Green's cellmate was released from detention at 6:30 p.m. and smoke was first detected in Green's cell at 7:50 p.m. Further, his cellmate's written statement, which was provided at Green's request, indicates that the cell "was in very good condition" when he left. Moreover, after personally "check[ing] numerous cells in this area[,]" the hearing officer found "it would be easy to quickly disassemble a light fixture and fool around with the wires [and] lights."

Our scope of review of administrative decisions is quite limited. We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are not to substitute our judgment for that of the agency, Brady v. Department of Personnel, 149 N.J. 244, 264 (1997), nor substitute our fact-finding for that of the agency. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Ibid. Judged by these standards, we are satisfied there is substantial credible evidence in the record to support the agency's decision and we discern no basis for our intervention.

Affirmed.

1 Disciplinary infractions preceded by an asterisk "are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a).