TERRENCE BRADLEY 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NOT FOR PUBLICATION WITHOUT THE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-5576-08T3

TERRENCE BRADLEY,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

____________________________

February 16, 2011

Submitted February 3, 2011 - Decided

Before Judges Axelrad and J. N. Harris.

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

Terrence Bradley, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Mary Beth Wood, Senior Deputy Attorney General, on the brief).

PER CURIAM

Appellant Terrence Bradley formerly incarcerated at Northern State Prison, but since released1 on five years' supervised parole2 appeals from the final administrative disciplinary determination of the New Jersey Department of Corrections (NJDOC) rendered against him on June 2, 2009. Bradley was found guilty of prohibited acts *.009, N.J.A.C. 10A:4-4.1(a)(*.009), ("misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device"); *.203, N.J.A.C. 10A:4-4.1(a)(*.203) ("possession or introduction of any prohibited substances such as drugs"); and *.306, N.J.A.C. 10A:4-4.1(a)(*.306) ("conduct which disrupts or interferes with the security or orderly running of the correctional facility"). We affirm.

On April 30, 2009, Senior Corrections Officer (SCO) Ed Jones observed Bradley unsuccessfully attempting to conceal a cellular telephone on his person and then flush it down cell 108's toilet. The cellular device was not recovered. In the ensuing search of the cell, however, a "green leaf[y] substance inside of the radio on the top bunk" was found. Bradley was assigned the top bunk of cell 108. Also, at the time that SCO Jones made his observations and attempted to prevent Bradley from flushing the cellular telephone, he was assaulted by Bradley, which required Bradley to be restrained and "a suited escort team . . . to be utilized to escort and place [inmate] Bradley" elsewhere. Bradley's action impeded the hunt for evidence and "delayed the search approximately ten minutes."

Bradley was served with the disciplinary charges on May 1, 2009. After several adjournments, a hearing was conducted on May 18 and 19, 2009. Bradley entered pleas of not guilty to all three charges. Upon his request, he was afforded the services of a counsel substitute. See N.J.A.C. 10A:4-9.12(a). He was permitted confrontation of witnesses. He was allowed to present evidence and to testify on his own behalf.

Bradley explained that he had never previously had a problem with SCO Jones, and he did not "know why this happened." He outright denied having dominion and control over a radio on his bunk. Finally, he asserted that he did not commit a disturbance that delayed the cell search.

The hearing officer reviewed the disciplinary reports, investigation reports, narcotics field test form, confrontation questions and answers, and all of the other evidence presented at the hearing. Bradley was found guilty of all charges.

Upon filing an administrative appeal with prison officials, the decision of the hearing officer was upheld. This appeal followed. After we temporarily remanded the matter to permit the NJDOC to more fully explicate its rationale, the NJDOC reconsidered the *.009 charge and found Bradley not guilty.

Bradley argues that his due process rights were violated by the NJDOC and that the determination finding him guilty of the two remaining disciplinary charges was against the weight of the evidence. We disagree with both contentions.

The contours of due process for persons incarcerated under the auspices of the NJDOC are well developed. An inmate in the custody of the NJDOC is entitled to (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal; (3) a limited right to call witnesses and present documentary evidence; (4) a limited right to confront and cross-examine adverse witnesses; (5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and (6) where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Avant v. Clifford, 67 N.J. 496, 525-33 (1975).

Each of these rights was provided to Bradley and we are unable to discern any erosion of his opportunity to defend the charges to the full extent permitted by our law. Bradley received notice of the charges at least twenty-four hours prior to the hearing; he reviewed the adjudication sheets and evidence considered by the hearing officer; he pled not guilty; he was given confrontation of SCO Jones, and he was permitted to make a statement on his own behalf. An impartial hearing officer conducted the disciplinary hearing and issued a written statement of the evidence relied on and the reasons for the sanctions imposed.

We further note that "[c]ourts have a limited role in reviewing a decision of an administrative agency." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Id. at 579-80. We find that the NJDOC's decision in this case was not arbitrary, capricious, or unreasonable given the facts presented, and conclude that the decision was supported by substantial credible evidence in the record as a whole.

Substantively, there was more than ample proof in the record to furnish substantial evidence of Bradley's guilt. Compare Jacobs v. Stephens, 139 N.J. 212, 222-23 (1995), with McDonald v. Pinchak, 139 N.J. 188, 201 (1995). Procedurally, we are satisfied that Bradley received at least the minimum level of due process owed to him at a prison disciplinary hearing. Avant, supra, 67 N.J. at 528-33.

A

1 Bradley's maximum sentence for aggravated manslaughter expired, and he was discharged from Northern State Prison on September 4, 2010.

2 See N.J.S.A. 2C:43-7.2(c) ("During the term of parole supervision the defendant shall remain in release status in the community in the legal custody of the Commissioner of the Department of Corrections and shall be supervised by the State Parole Board as if on parole and shall be subject to the provisions and conditions of [N.J.S.A. 30:4-123.51(b)]."). Because of this continued parole status and the potential for a return to prison with the attendant adverse consequences of these disciplinary charges, we reject the NJDOC's claim that due to the expiration of the sentence, this appeal is moot. See N. J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 262 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).