KEVIN MILLER 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NOT FOR PUBLICATION WITHOUT THE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

KEVIN MILLER,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________

January 17, 2014

Submitted January 6, 2014 Decided

Before Judges Harris and Guadagno.

On appeal from the New Jersey Department of Corrections.

Kevin Miller, appellant pro se.

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

PER CURIAM

Appellant Kevin Miller appeals from the December 20, 2011 final disciplinary determination of the Department of Corrections (the Department), which found him guilty of committing prohibited act *.215, "possession with intent to distribute or sell prohibited substances such as drugs, intoxicants or related paraphernalia," in violation of N.J.A.C. 10A:4-4.1(a)(*.215). We affirm.

I.

Miller is an inmate formerly housed at the New Jersey State Prison serving a thirty-year sentence with a fifteen-year parole disqualifier. On June 21, 2011, Miller was charged with committing prohibited act *.215 and was served with the Department's disciplinary report that same day.

Miller pled not guilty and requested the appointment of counsel substitute. After two short adjournments, the disciplinary hearing was conducted on June 29, 2011.

Miller was provided with concise summaries of confidential reports that were prepared in 2008 in connection with a prolonged Special Investigation Division (SID) probe that had commenced in 2006. The investigation was initiated following the stabbing of another inmate because the inmate allegedly failed to deliver contraband drugs as part of a wide-scale smuggling operation at New Jersey State Prison.

Miller was specifically accused of actively participating in the smuggling operation. This was accomplished, according to the confidential report summaries prepared by the hearing officer, when Miller received drugs during one or more inmate visits in 2008 from an individual named Lindsey Ice. The evidence further indicated that Miller was earlier identified as a participant in the scheme in two monitored telephone calls that occurred in June 2006.

Miller admitted knowing Ice, but denied that he ever received drugs from her. Except to deny his involvement in any prohibited act, Miller offered no evidence and elected not to confront adverse witnesses. No drug contraband was ever found in Miller's possession.

The hearing officer considered all of the available evidence, including the confidential reports of the SID investigation, and concluded that Miller was guilty of prohibited act *.215. The hearing officer noted that

this has been a long ongoing investigation by SID involving numerous inmates and civilians into the smuggling of CDS in [New Jersey State Prison] and money laundering (street to street) transactions. Once [inmate] Miller was charged his hearing process was started immediately and was afforded the opportunity to review summaries of all confidential information used in this hearing to support the charge.

Sanctions of fifteen days detention, 365 days of administrative segregation, 365 days loss of commutation time, 180 days urine monitoring, and permanent loss of contact visitation rights were imposed.

Miller filed an administrative appeal in which he argued that (1) the hearing officer had misinterpreted the facts; (2) the hearing officer's decision violated N.J.A.C. 10A:4-9.15(a) because it was not based upon sufficient, credible evidence in the record; and (3) Miller's due process rights were violated under N.J.A.C. 10A:4-9.2 ("The disciplinary report shall be served upon the inmate within 48 hours after the violation unless there are exceptional circumstances."). The assistant administrator of New Jersey State Prison upheld the hearing officer's determination explaining,

A review of the charge, investigation and its adjudication revealed that [N.J.A.C.] 10A and all of the safeguards therein were adhered to. Your explanation failed to disclose any valid violation of standard relative to [N.J.A.C.] 10A or explanation to validate any misinterpretation of fact. Due to the length of the investigation which bore out the facts the charge was delayed and [N.J.A.C.] 10A also covers this. Your appeal is filed out of timeframe as well but is heard anyway. For these reasons the decision of the Hearing Officer is upheld.

This appeal followed.

II.

Miller reprises his previous arguments on appeal, expanding his contention that his "due process rights were violated by the delay that it took the investigator to serve him with notice of the charge for a violation of a prohibited act that occurred as far back as [five] years ago, and as recent as [three] years ago." We have reviewed all of Miller's appellate contentions, and are satisfied that they are unpersuasive.

Our scope of review is limited, and Miller's contentions must be analyzed in accordance with that standard. In re Stallworth, 208 N.J. 182, 194 (2011); Moore v. Dep't of Corr., 335 N.J. Super. 103, 110 (App. Div. 2000). "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 Miller 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).

Furthermore,

"although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123, (App. Div. 2002). Accordingly, our function is not to merely rubberstamp an agency's decision, Williams v. [Dep't] of [Corr.], 330 N.J. Super. 197, 204 (App. Div. 2000); rather, our function is "to engage in 'a careful and principled consideration of the agency record and findings.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).

[Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010).]

After such an assessment of the record, we conclude that Miller 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). The record is bereft of evidence to call into question the factual findings of the hearing officer, all of which were based upon competent evidence. See N.J.A.C. 10A:4-9.15(b).

Furthermore, although neither the hearing officer nor the assistant administrator expressly addressed "exceptional circumstances," N.J.A.C. 10A:4-9.2, as a basis to justify the delay in serving the disciplinary report on Miller, it is clear that such circumstances were present. The record reveals that the SID investigation was a complex and far-reaching undertaking that started with an inmate's stabbing and ultimately uncovered money laundering and institutional drug trafficking. In order to ensure appropriate flexibility for prison officials to gather evidence in their perpetual efforts to maintain security, we are satisfied that the nature of the SID investigation here was the type of exceptional circumstance to warrant even the long delay in serving Miller with the charge against him. We further detect no prejudice to Miller in defending the charge, particularly since he offered no evidence other than to deny his involvement.

Finally, we conclude that the final administrative determination was not arbitrary, capricious, or unreasonable given the facts presented; the proceedings comported with due process; and the decision is supported by substantial credible evidence in the record as a whole.