CHARLES TERRELL 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NOT FOR PUBLICATION WITHOUT THE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

CHARLES TERRELL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________________

April 9, 2014

Submitted January 28, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the New Jersey Department of

Corrections.

Charles Terrell, appellant pro se.

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

PER CURIAM

Inmate Charles Terrell appeals from the October 23, 2012 final determination of the Department of Corrections (the Department) that he possessed or misused an electronic communication device, a cell phone, in violation of *.009, as set forth in N.J.A.C. 10A:4-4.1(a).1 The Department also adopted the hearing officer s recommended sanction of fifteen days of detention, 365 days of administrative segregation, and 365 days of lost commutation time. For the reasons that follow, we reverse.

The record reveals the following facts. On September 10, 2012, the Department received two anonymous notes stating that Terrell possessed a cell phone and allowed a fellow inmate to use it on the weekends. The Special Investigations Division commenced an investigation and searched Terrell's eight-inmate pod, where a cell phone charger was located in a ventilation duct above another inmate's bed. Based on Terrell's association with an inmate in another pod, prison staff also searched that eleven-inmate pod and found two cell phones and chargers in the ductwork. A forensic examination revealed that one of the concealed phones contained eleven photos of Terrell in various poses and looking toward the camera/phone.

At the ensuing disciplinary hearing on October 12, 2012, Terrell pleaded not guilty, arguing that the evidence was insufficient to prove that he possessed or misused a cell phone. He also requested and received assistance of a counsel substitute. The hearing was postponed a number of times in order for the hearing officer to obtain investigative reports and to allow Terrell to prepare cross-examination questions for the testifying investigator.

At the continuance of the hearing on October 22, 2012, Terrell was permitted to cross-examine the testifying investigator utilizing written questions he prepared and submitted to the hearing officer. After examining the evidence, the hearing officer found Terrell guilty based upon the investigator's testimony and the photos of Terrell found on the phone, which the hearing officer determined to be substantial evidence to support the charge. Specifically, the hearing officer noted that Terrell "misused the phone by having photo[s] on it," which showed him "posing for [the] camera."

On October 23, 2012, an assistant superintendent of the Department issued a final agency decision upholding the hearing officer's decision. This appeal followed.

On appeal, Terrell claims that there was insufficient evidence to show that he possessed or misused the phone, that the hearing officer violated his right to confrontation by refusing to allow him to ask follow-up questions to the testifying investigator, and that the discipline imposed was excessive. Because we agree that the Department's decision was not supported by "substantial evidence" of possession or misuse of the cell phone, we do not reach Terrell's other two claims.

We begin with a review of the relevant principles governing our analysis. Our review of an agency's final decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We reverse an agency's disciplinary decision only where it is arbitrary, capricious, unreasonable, or unsupported by substantial credible evidence in the record. Henry, supra, 81 N.J. at 579-80.

Although "[a] reviewing court 'may not substitute its own judgment for the agency's, even though the court might have reached a different result,'" Stallworth, supra, 208 N.J. at 194 (quoting In re Carter, 191 N.J. 474, 483 (2007)), "an appellate court is 'in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue[.]'" Carter, supra, 191 N.J. at 483 (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Indeed, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We are, however, mindful 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).

A finding of guilt in an inmate disciplinary charge must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). This has been defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion," or "evidence furnishing a reasonable basis for the agency's action." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (internal quotation marks and citation omitted).

After thoroughly reviewing the record, we find that there is insufficient evidence to show that Terrell either possessed or misused the cell phone. First, the evidence in the record is inadequate to conclude that Terrell possessed the phone. None of the eleven photographs presented at the hearing depict Terrell having actual possession of any phone, and the testifying investigator in cross-examination conceded that misuse was the essence of the infraction.2

Moreover, the Department can rely in this instance on the principles of constructive possession. [A] person has constructive possession of an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Morrison, 188 N.J. 2, 14 (2006) (internal quotation marks and citations omitted). Although the photos demonstrate that Terrell likely knew of the phone's existence, the Department did not present any evidence showing that Terrell intended to exercise physical control of it.

The Department argues that the two anonymous notes saying Terrell had a cell phone provides evidence of possession of the discovered phone. Those notes, however, are of de minimus evidentiary value as they constitute particularly unreliable hearsay by an unknown actor. See In re Registrant, C.A., 146 N.J. 71, 96 (1996) (noting that hearsay in the form of an anonymous tip is generally less reliable than information provided by an identified declarant). Although hearsay is admissible in an agency hearing, N.J.S.A. 52:14B-10(a), an adjudication in a disciplinary charge "may not be based solely on hearsay[,]" and must be "supported by a residuum of legal and competent evidence." Negron v. N.J. Dep't of Corr., 220 N.J. Super. 425, 432 (App. Div. 1987) (citing Weston v. State, 60 N.J. 36, 50-51 (1972)). Here, the Department has not provided a residuum of competent evidence to provide a reasonable basis to conclude that Terrell possessed the phone found in the duct work of another pod. See Figueroa, supra, 414 N.J. Super. at 192.

Second, there is insufficient evidence in the record to show that Terrell used, much less misused, the cell phone. The Department contends that by posing and allowing himself to be photographed, Terrell misused the phone in violation of *.009. We cannot agree. In Figueroa, supra, we applied the concept of possession found in the criminal code to inmate discipline because the Department's disciplinary regulations lacked a definition of possession. 414 N.J. Super. at 192. We noted that "'[p]ossession . . . signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character.'" Ibid. (emphasis omitted) (quoting State v. Pena, 178 N.J. 297, 305 (2004)). Similarly, a person must have some control over the camera in order to use it to take photos.

However, the Department provided no evidence showing that Terrell had any control over the phone, possessed the phone, took any photos himself, or that he directed another inmate to take the photos. Rather, the hearing officer's determination of misuse was based solely on the presence of photographs of Terrell in the cell phone. The mere fact that Terrell looked at the phone in the possession of another person and struck a pose, without more, is entirely inadequate to demonstrate that he had any intentional control or use of the phone sufficient to prove possession or misuse of it.

Accordingly, as the record lacks sufficient credible evidence to support the Department's finding, we reverse the adjudication and penalty imposed for violating *.009.

1 Department Inmate Disciplinary Regulations classify "asterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1; see also Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).

2 The xeroxed copies of the photos in the record are not sufficiently clear to demonstrate that Terrell took the pictures himself, which would alter our analysis. In any event, the Department does not claim Terrell took the pictures, merely that he posed for them.