KYLE BROOKS 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NOT FOR PUBLICATION WITHOUT THE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

KYLE BROOKS,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

______________________________

Submitted May 5, 2014 Decided May 13, 2014

Before Judges Parrillo and Harris.

On appeal from the New Jersey Department of Corrections.

Kyle Brooks, appellant pro se.

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

PER CURIAM

Plaintiff Kyle Brooks appeals from the September 18, 2012 final disciplinary disposition of the Department of Corrections (the Department) that found him guilty of committing three prohibited acts: *.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," N.J.A.C. 10A:4-4.1(a)(*.203); *.216, "distribution or sale of prohibited substances such as drugs, intoxicants or related paraphernalia," N.J.A.C. 10A:4-4.1(a)(*.216); and .703, "correspondence or conduct with a visitor in violation of regulations," 10A:4-4.1(a)(*.703). We affirm.

I.

On August 21, 2012, Brooks was an inmate at the Mountainview Youth Correctional Facility, where he was serving an aggregate sentence of seven years with a three-year parole disqualifier for crimes involving controlled dangerous substances and prohibited weapons. On that date, Brooks was charged with several prohibited acts, including three for which he was later acquitted. A hearing was conducted on August 23, 2012, at which time Brooks pled not guilty and was granted the assistance of a counsel substitute. Brooks elected not to make any statements at the hearing and declined to confront any witnesses.

The evidence adduced against Brooks collected as part of a lengthy ongoing investigation demonstrated that he had engaged in actions with a visitor to facilitate the smuggling of contraband1 into the penal institution over several months. Hearing Officer C. Ralph considered all of the available evidence including interview notes, correspondence, and admissions and concluded that "there is substantial evidence" to support the three charges that are the subject of this appeal.

Brooks filed an administrative appeal, in which he interposed a "plea of leniency." Associate Administrator A. Kandell upheld the hearing officer's determination explaining, "[the] evidence presented substantiates the charge[s] as written sanction is proportionate to the offense." This appeal followed.

On appeal, Brooks presents the following issue for our consideration:

POINT I: VIOLATION OF DUE PROCESS FOR THE STAFF AT MOUNTAINVIEW YOUTH CORRECTIONAL FACILITY AND COURTLINE HEARING OFFICER, MS. RALPH, FOR FAILING TO ACKNOWLEDGE THAT THE DISCIPLINARY REPORT WASN'T SERVED TO APPELLANT WITHIN 48 HOURS OF ITS OCCURRENCE AS REQUIRED BY LAW (SEE 10A:-9.2). THE INFRACTION WAS DELIVERED FIVE (5) DAYS LATER AND THERE WASN'T ANY EXPLANATION ADVANCED BY EITHER PARTY (STAFF MEMBERS AT THE MOUNTAINVIEW YOUTH CORRECTIONAL FACILITY OR HEARING OFFICER MS. RALPH) INDICATING THAT THERE WERE EXCEPTIONAL CIRCUMSTANCES THAT WARRANTED THE DELAY. BY BOTH PARTIES (THE STAFF AT MOUNTAINVIEW YOUTH CORRECTIONAL FACILITY AND COURTLINE HEARING OFFICER MS. RALPH) FAILURE TO ADHERE TO ANY OF THE TIME LIMITS PRESCRIBED BY SUBCHAPTER 10A:4-9.2, APPELLANT'S SANCTION SHOULD BE DISMISSED IN ACCORDANCE WITH 10A:4-9.9, SINCE NO ONE HAD ADVANCED ANY EXPLANATION/REASON FOR THE DELAY.

We have reviewed Brooks's argument through the lens of the record and in light of the applicable law, and conclude that it is unpersuasive.

II.

Our scope of review is limited, and Brooks's claims must be analyzed in accordance with that standard. In re Stallworth, 208 N.J. 182, 194 (2011); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, supra, 208 N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The burden is on Brooks to demonstrate grounds for reversal. See Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant"), certif. denied, 135 N.J. 469 (1994).

After an assessment of the record, we conclude that Brooks received all of the substantive and procedural due process to which he was entitled under the principles of McDonald v. Pinchak, 139 N.J. 188 (1995) and Avant v. Clifford, 67 N.J. 496 (1975). Brooks was given written notice of the charges at least twenty-four hours prior to the hearing, he was provided with counsel substitute, he was offered the opportunity to call witnesses, and the hearing officer delivered a written statement of the evidence relied upon and the reasons for the discipline.

Any delay in bringing charges against Brooks, which would ordinarily have been served within forty-eight hours of the offense, as required by N.J.A.C. 10A:4-9.2 ("[t]he disciplinary report shall be served upon the inmate within 48 hours after the violation unless there are exceptional circumstances"), resulted from the ongoing nature of the Department's overall investigation. That was an exceptional circumstance justifying delay under the cited regulation, and dismissal of the disciplinary charges is unwarranted. See, e.g., Jacobs v. Stephens, 139 N.J. 212, 219 (1995) (finding the violation of the rule requiring an inmate to have twenty-four hours to prepare for a disciplinary hearing was harmless).

1 The contraband was described as "'sour,' a pungent smelling marijuana."