MARIO 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NOT FOR PUBLICATION WITHOUT THE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

MARIO MILLER,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________

December 17, 2015

Argued November 4, 2015 Decided

Before Judges Leone and Whipple.

On appeal from New Jersey Department of Corrections.

Thomas S. Mirigliano argued the cause for appellant (Thomas R. Ashley, attorney; Mr. Ashley, on the brief).

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

PER CURIAM

Mario Miller, an inmate at Northern State Prison, appeals a September 16, 2014 final decision of the Department of Corrections (DOC). The DOC upheld a disciplinary officer's decision finding him guilty of prohibited act *.204, the use of prohibited substances including drugs. See N.J.A.C. 10A:4-4.1(a). We affirm.

We discern the following facts from the record. Miller is currently serving a ten-year prison term at Northern State Prison for manufacturing, distributing, and dispensing a controlled dangerous substance. Miller surrendered himself to begin his prison term on June 23, 2014. On July 19, 2014, he was subjected to a random drug screening procedure. DOC laboratory technicians tested Miller's urine sample and found that it tested positive for THC, the main psychoactive component of marijuana. The DOC sent the urine sample to the Department of Health for confirmation. After testing the sample on July 25, 2014, the Department of Health confirmed that Miller's urine contained THC.

After receiving the results, the matter was referred to a disciplinary hearing officer. Miller received notice of charges on August 15, 2014, and the hearing occurred on August 27, 2014. Miller pled not guilty and prepared his case with the help of a counsel substitute. At the conclusion of the hearing, the hearing officer found that Miller was guilty of prohibited act *.204, and imposed fifteen days of detention, 150 days of administrative segregation (which the officer suspended for sixty days), 150 days of lost commutation time, thirty days of lost recreation privileges, one year of random urine monitoring, and loss of contact visits.

After the hearing, Miller filed an administrative appeal with the DOC. The basis of his appeal was that he had only been in prison for approximately four weeks, and that he had smoked marijuana the night before he entered prison. He argued that he did not smoke marijuana while in prison, and that the THC appeared on his drug screen because it remained in his body from the night before he surrendered himself. The DOC rejected Miller's arguments and upheld the hearing officer's determination. This appeal followed.

Appellant raises the following arguments on appeal

POINT ONE

THE DECISION OF THE DEPARTMENT OF CORRECTIONS, ADJUDICATING MILLER GUILTY OF HAVING COMMITED PROHIBITED ACT *.204 AND AFFIRMING THE CONVICTION ON APPEAL, WAS ARBITRARY, CAPRICIOUS AND LACKED ANY SUPPORT IN THE RECORD [THIS ISSUE WAS RAISED IN THE PROCEEDINGS BELOW].

POINT TWO

THE RULE OF LENITY COMPELS THE DISCIPLINARY CONVICTION BE VACATED [THIS ISSUE WAS RAISED IN THE PROCEEDINGS BELOW].

This court has a limited role in reviewing the decisions of administrative agencies such as the DOC. We will only reverse such a decision if it is "arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole." Prado v. State, 186 N.J. 413, 427 (2006) (internal quotation marks and citations omitted) (quoting In re Taylor, 158 N.J. 644, 657 (1999)). In appeals specifically concerning the DOC and disciplinary proceedings in prisons, we focus on whether an adjudication of guilt is supported by "substantial evidence[.]" Avant v. Clifford, 67 N.J. 496, 530 (1975).

We conclude that the DOC had substantial, sufficient evidence in finding that appellant violated N.J.A.C. 10A:4-4.1(a)'s prohibited act *.204 by smoking marijuana while he was incarcerated. Miller's urine sample, which was tested by both DOC and Department of Health laboratories, tested positive for THC. This sample was taken on July 19, well after Miller began his prison term. This evidence supported a reasonable inference that he had smoked marijuana while in prison, and was sufficient to support the DOC's finding. In addition, Miller made a statement, but did not specify that he smoked marijuana other than to suggest that it occurred prior to his incarceration. Even if the drug laboratory results did not rule out the possibility that he had last smoked marijuana on the night before reporting for prison, the DOC's determination is neither arbitrary, capricious, nor lacking supporting evidence.

Miller argues that the rule of lenity requires us to vacate his disciplinary conviction. We disagree. The rule of lenity is a rule of statutory construction that is used when a statutory principle or scheme is vague or ambiguous. State v. Regis, 208 N.J. 439, 451-52 (2011). Prohibited act *.204 explains that an inmate violates the administrative code if the inmate uses "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). Both the parties and we agree that the prohibited act penalizes only use of prohibited substances while an inmate. Because the language of this administrative provision is unambiguous, the rule of lenity does not apply. We also reject Miller's argument that having been afforded the privilege of self-surrender he should have been either exempt from testing for a period of time or tested immediately upon entry. Miller's remaining arguments are without sufficient merit to warrant discussion. See R. 2:11-3(e)(1)(E).

Affirmed.