DAVID SMITH 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NOT FOR PUBLICATION WITHOUT THE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-1454-09T2

DAVID SMITH,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________

March 17, 2011

Submitted December 15, 2010 - Decided

Before Judges Axelrad and Lihotz.

On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

David Smith, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant David Smith, an inmate at South Woods State Prison, appeals from a final decision of the Department of Corrections (DOC) adjudicating him guilty of prohibited act *.011, possessing material related to a security threat group (STG). N.J.A.C. 10A:4-4.1(a). Following a hearing, appellant was sanctioned 15 days detention, receiving credit for time served, and 120 days of administrative segregation. On the administrative appeal, the Commissioner's office affirmed the hearing officer's findings and sanctions. Appellant appealed, and we affirm.

These are the relevant facts adduced from the record. In a routine search of appellant's cell at East Jersey State Prison, Lieutenant C. House discovered seven letters, consisting of ten handwritten pages, believed to contain STG references. The documents were turned over to the prison's Special Investigation Division (SID) for review and analysis. SID Investigator W. David Calderon rendered a report that the letters contained references to a STG, "the Bloods." In the letters, repeated references are made to "Scoob," which Investigator Calderon advises is a reference to the cartoon dog, "Scooby Doo." He states members of the Bloods often refer to each other as "Scoob," "Dawg" or "Dog." In one letter, the author advises he is being transferred to Northern State Prison and instructs appellant, "you already know how to write don't write none of tha [sic] scoob moreless [sic] & all dat [sic]." Investigator Calderon opines this is a warning not to include STG references in correspondence.

Following receipt of Investigator Calderon's report, appellant was served with the charge for possession of STG materials.1 Appellant pled not guilty and his request for assistance by counsel substitute was granted. During the hearing appellant argued "Scoob" was "nothing more than his childhood friend's nickname"; he did not know the statements were STG references and he was not a gang member.

Relying on the expert opinion of Investigator Calderon, who the hearing officer noted documented his training and experience and was qualified to render an opinion regarding the nature and meaning of gang terminology, appellant was found guilty. The Assistant Commissioner affirmed this decision on appeal. Appellant now requests our review, contending he was denied due process because his conviction was not based on substantial evidence of his knowing possession of gang related material.

Our review of agency action is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We will defer to the agency's conclusions, particularly to matters that lie within the special competence and expertise of the administrative agency. Brady v. Dep't of Pers., 149 N.J. 244, 256-57 (1997). "We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005). Accordingly, we reverse "only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry, supra, 81 N.J. at 579-80). See also N.J.A.C. 10A:4-9.15(a) (requiring any "finding of guilt at a disciplinary hearing" be "based upon substantial evidence that the inmate has committed a prohibited act"). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In Re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quotations and citations omitted).

Appellant argues he did not "knowingly possess" STG related material and was not proven to be a gang member. However, the regulation prohibiting possession of security threat items does not require proof of either gang membership or knowledge of the relation of prohibited materials to a STG. N.J.A.C. 10A:4-4.1(a), *.011. Possession in itself is a violation, and appellant does not dispute he possessed the letters.

Further, appellant's suggestion that the reference was a friend's nickname is not supported. As noted by the Assistant Commissioner, the references to "Scoob" were not merely used solely in place of a name, it was also used to describe written materials ("don't write none of tha [sic] scoob").

"[D]etermining whether prison materials are gang related constitutes a particular Department of Corrections' expertise[.]" Balagun v. Dep't of Corr., 361 N.J. Super. 199, 202 (App. Div. 2003). When adequately explained, we defer to that expertise in classifying prohibited items. Ibid. Here, we determine the STG relationship was properly explained by the DOC's expert and the Assistant Commissioner's finding was supported by substantial, credible evidence. The agency properly placed reliance upon Investigator Calderon's report.

A

1 A second charge for violating prohibited act *.010, participating in a STG, was dismissed by the hearing officer as unsupported.