DAVID HOWARD 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NOT FOR PUBLICATION WITHOUT THE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-0

DAVID HOWARD,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

January 23, 2014

Submitted January 7, 2014 Decided

Before Judges Fisher and Koblitz.

On appeal from New Jersey Department of Corrections.

David Howard, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Inmate David Howard is serving a fifty-year sentence with a mandatory-minimum term of more than forty-two years at New Jersey State Prison (NJSP) for a conviction of murder and other crimes. He appeals the September 27, 2012 final decision of the Department of Corrections (DOC) finding him guilty of prohibited act *.009, possession and use of a cellular telephone, N.J.A.C. 10A:4-4.1(a). He was sanctioned to fifteen days detention, 365 days loss of contact visits,1 365 days loss of telephone privileges, 365 days of administrative segregation, and a loss of 365 days of commutation time.

An interview with Howard's mother, and information obtained from a wire-tap of the cell phone, revealed that Howard used a prohibited cell phone to call his mother on several occasions.

Our role in reviewing the decision of an administrative agency is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset a determination of an agency unless there is a showing that it was arbitrary, capricious or unreasonable or lacked fair support in the evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The DOC has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, it has been noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522-23 (1975). New Jersey guarantees prisoners certain limited procedural protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff of the prison, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, the assistance of a counsel-substitute, and a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33. Howard was afforded all of his Avant due process rights.

Howard argues that the decision was not based on substantial credible evidence. Howard's mother told the NJSP Special Investigations Division (SID) investigator that Howard had called her approximately three times in 2011 and that her phone does not accept collect calls. The prison telephone accessible by the inmates can only be utilized to make collect calls. Howard's defense, that he purchased a phone debit card in 2012, is not relevant. Additionally, a wire-tap of the cellular phone substantiated Howard's use of that phone to call his mother. Howard complains that he was not given a copy of the SID report, however such reports are properly confidential in nature and its exclusion was proper. N.J.A.C. 10A:4-9.15(b)1. Howard was given a summary of the interview with his mother and given the opportunity to call his mother as a witness, which he declined.

The relevant standard of review is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole[.]" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted). N.J.A.C. 10A:4-9.15(a) provides that "a finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." Such evidence existed here.

Affirmed.

1 The Department states in its brief that Howard received a permanent loss of contact visits, but the prison records attached to the Department's brief support Howard's contention that he lost contact visits for 365 days.