MIGUEL PEREZ 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NOT FOR PUBLICATION WITHOUT THE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-4958-11T2

MIGUEL PEREZ,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

May 28, 2013

Submitted May 15, 2013 Decided

Before Judges Grall and Simonelli.

On appeal from the New Jersey Department of Corrections.

William A. Miller, attorney for appellant.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Erin M. Greene, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Miguel Perez appeals from the May 30, 2012 final agency decision of respondent New Jersey Department of Corrections (DOC) upholding the decision of a hearing officer to impose disciplinary sanctions for committing prohibited act *.203, possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Appellant was incarcerated at Kintock Bridgeton 2, a community release facility. At approximately 8:00 p.m. on May 15, 2012, Senior Manager Parker saw appellant entering House 3 with a Minute Maid orange juice bottle containing a clear substance. Parker ordered appellant to throw the bottle into a trash can inside the manager's office, which contained paper and a pair of blue staff gloves, but no other bottles. Shortly thereafter, Resident Supervisor Smith retrieved the bottle from the trash can, opened it, and smelled the contents. He reported to Manager Buczynski that the contents smelled of alcohol. Buczynski smelled the bottle's contents and noticed "a strong" smell of alcohol emanating from it." Parker smelled the contents as well, and confirmed the bottle contained "an alcohol-like substance."

Appellant was charged with committing prohibited act *.203, and transported to South Woods State Prison. During an interview with Sergeant Harris, appellant admitted that he had consumed a bottle of vodka and was still under the influence. Based on this admission, appellant was housed in the Extended Care Unit.

Appellant was served with notice of the charge on May 16, 2012. At the hearing on May 18, 2012, appellant received substitute counsel and pled not guilty. The hearing was postponed to allow Hearing Officer Morales-Pitre to obtain additional information. At Hearing Officer Morales-Pitre's request, Senior Investigator Gunn opened the bottle and reported there was a "strong smell of alcohol from the container."

The hearing continued on May 23, 2012. Appellant declined to call witnesses or confront adverse witnesses. He denied he had consumed alcohol or admitted to Sergeant Harris that he had done so, and argued that the trash can was located in the lobby and was filled with trash and other bottles, including another juice bottle. Hearing Officer DiBenedetto found appellant guilty of the charge and sanctioned him to 10 days' detention, with credit for time served; 180 days' administrative segregation; 180 days' loss of commutation time; permanent loss of contact visits; and 365 days' urine monitoring.

On May 23, 2012, appellant administratively appealed, requested leniency, and argued that the bottle was found in an open area. He also asserted for the first time that the record lacked substantial evidence to support a guilty finding because there were no tests confirming that there was alcohol in the bottle. On May 26, 2012, Assistant Superintendent Haas affirmed Hearing Officer DiBenedetto's decision. This appeal followed. On appeal appellant raises the same arguments he raised before Assistant Superintendent Haas.

We reverse an agency's decision only where it is arbitrary, capricious, unreasonable or unsupported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). An adjudication of guilt of a charge against an inmate must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). "Substantial evidence" means "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Electric & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010). The term has also been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).

Here, the DOC's decision was not arbitrary, capricious or unreasonable and was supported by substantial evidence in the record. Appellant declined to request or confront witnesses, including Sergeant Harris, appellant admitted to drinking vodka, and the bottle contained a clear liquid that had the odor of alcohol.

Affirmed.