WALLACE ATHILL 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NOT FOR PUBLICATION WITHOUT THE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-3454-09T2

WALLACE ATHILL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________

October 24, 2011

Submitted September 28, 2011 Decided

Before Judges Axelrad and Ostrer.

On appeal from the New Jersey Department of Corrections.

Wallace Athill, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Andrea Silkowitz, Assistant Attorney General, of counsel; Marisa Slaten, Deputy Attorney General, on the brief).

PER CURIAM

Wallace Athill, then an inmate at East Jersey State Prison, appeals from a final disciplinary decision of the Department of Corrections (DOC), which upheld a hearing officer's finding that Athill had received money from another inmate, in violation of the facility's rules. See N.J.A.C. 10A:4-4.1 (enumerating prohibited acts that subject inmates to discipline, including ".754 accepting money . . . from . . . another inmate's friend with an intent to circumvent any correctional facility or Departmental rule, regulation or policy[.]"). The final decision also affirmed the hearing officer's order of sanctions of fifteen days detention, ninety days administrative segregation, and ten days loss of recreational privileges. We affirm.

It was undisputed that on January 30, 2010, appellant received a $100 check from another inmate's attorney, along with a letter stating "Per [inmate] Craig Szemple's request enclosed herewith please find check in the amount of $100.00 for food." Appellant was employed in the prison kitchen. He admitted that he provided excess food to inmates, to avoid waste. The investigator interviewed the attorney, who confirmed that he sent the check to appellant for food at Szemple's request.

The investigating officer asserted that appellant also admitted that the money was sent in exchange for extra food that he gave Szemple, who did not like going to the inmate dining room. At the hearing, appellant denied making that admission and denied that he provided food to Szemple. He claimed that Szemple's attorney was supposed to help appellant on one of appellant's own legal matters.

Szemple testified that the letter and check were sent by mistake and presented a February 19, 2010 letter that he obtained from his attorney, in which he apologized for the "errant check sent to Mr. Athill." The attorney stated, "Upon reviewing telephone messages that passed through staff here, it is obvious that a mistake was made. . . ." The attorney was not called as a witness; he did not expressly describe the nature of the "mistake"; nor did he expressly deny that Szemple told him to send a $100 check to appellant. The February 19 letter was not Szemple's first attempt to obtain an exonerating statement from his attorney. The attorney had sent a letter to Szemple dated February 11, 2010 that simply "confirm[ed] that you have advised me that the check issued by this office to Mr. Wallace Athill should be returned. Unfortunately you have indicated that this has caused problems for you."

The hearing officer found appellant guilty of the charge after a hearing on March 5, 2010. She specifically credited the investigator's testimony that Athill admitted to providing food for money. In his administrative appeal, appellant argued that the evidence was insufficient to sustain the charge. The facility's assistant superintendent upheld the hearing officer's decision on March 10, 2010, finding the evidence sufficient.

Athill appeals and argues that he was "denied due process where the finding of guilt was not supported by substantial evidence pursuant to N.J.A.C. 10A:4-9.15." We disagree.

At the outset, we observe that appellant does not assert any procedural deficiencies to support his claim of a due process violation. He argues only that the weight of the evidence does not support the agency's decision. See N.J.A.C. 10A:4-9.15 ("A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act.").

Our review of the Department's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or is unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Substantial evidence had been defined alternately as "'such evidence as a reasonable mind might accept as adequate to support a conclusion,'" and "'evidence furnishing reasonable basis for the agency's action.'" Figueroa v. N.J. Dep't of Corrs., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Public Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) and McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002)).

There was evidence upon which the agency could reasonably base its decision, including notably the attorney's initial letter, describing the purpose of the $100 check, and the investigator's testimony regarding appellant's admission and the attorney's confirmation of why he sent the money. The hearing officer was not compelled to credit appellant's and Szemple's denials, nor required to weigh heavily the attorney's after-the-fact and somewhat non-responsive letter. We may not substitute our judgment for the agency's. Figueroa, supra, 414 N.J. Super. at 191.

A