DEMETRIU SMINOR v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4910-15T2


DEMETRIUS MINOR,

        Defendant-Appellant,

v.

NEW JERSEY DEPARTMENT OF
CORRECTIONS,

     Plaintiff-Respondent.
______________________________


              Submitted December 20, 2017 - Decided January 26, 2018

              Before Judges Koblitz and Manahan.

              On appeal from the New Jersey Department of
              Corrections.

              Demetrius Minor, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Melissa Dutton
              Schaffer, Assistant Attorney General, of
              counsel; Kevin J. Dronson, Deputy Attorney
              General, on the brief).



PER CURIAM

        Prison inmate Demetrius Minor is serving thirty years in

prison with a mandatory minimum of more than twenty-five years for
manslaughter and carjacking.         He appeals from a March 24, 2016

disciplinary action taken against him by the New Jersey Department

of Corrections (DOC) after a hearing at which he was found guilty

of prohibited act *.803/*.215, attempting to possess with intent

to   distribute   or    sell   prohibited   substances   such   as    drugs,

intoxicants or related paraphernalia, N.J.A.C. 10A:4-4.1.              He was

given a sanction of 365 days loss of commutation time, 180 days

administrative segregation, 15 days loss of recreation privileges,

permanent loss of contact visits, and 365 days urine monitoring.

Finding no merit to Minor's numerous appellate arguments, we

affirm.

      On the morning of March 2, 2016, a corrections officer was

packing up Minor's belongings when a note fell out of a jacket

pocket.   The note was taped shut inside another piece of paper.

Exactly   as   set     forth   in   the   hearing   officer's   report      of

adjudication, the note stated:

           the bags are $15. You can sell the bags for
           20 or 25 or 30. I just want 750 . . . and no,
           their not street bags but their a good size
           . . . and you asked about the payment. It has
           to be street to street. I have an address for
           you . . . Oh do you know people that will buy
           weed.   Tell heed that will be coming soon.
           I'm not selling sticks though, but I'll holla.

      After three adjournments for administrative reasons, the

hearing was concluded on March 10, 2016.        Minor received a counsel



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substitute, pled not guilty and stated that he was "set up" by an

inmate who assisted the officers in packing up Minor's belongings.

      The hearing officer found:

           [T]he language used in this note specifically
           references the cost of "bags," which is
           something that prohibited substances are sold
           in.   Further, "street to street" is a term
           used within the correctional facility setting
           which implies the type of transaction that
           needs to be made in an attempt to circumvent
           the proper procedure in regards to receiving
           money. Lastly, the note explicitly addresses
           the purchasing of "weed" (marijuana).

      The hearing officer noted that "it is irrelevant if [the

inmate] authored this note . . . this inmate was in possession of

this note which aided a person or people in obtaining [controlled

dangerous substances] to be sold within the secure perimeter of

the institution."

      Minor argues that the evidence did not support the finding

because the note was not found when he originally left the cell

on February 26, 2016, his possessions were accessible to other

inmates,   and   the   note     was   found       only     after   he   wrote   seven

complaints against prison officials.

      The scope of our review of an agency decision is limited.                     In

re   Taylor,   
158 N.J.   644,     656       (1999).     "An    appellate    court

ordinarily will reverse the decision of an administrative agency

only when the agency's decision is 'arbitrary, capricious or

unreasonable     or   []   is   not   supported       by    substantial    credible

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evidence in the record as a whole.'"            Ramirez v. Dep't of Corr.,


382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original)

(quoting Henry v. Rahway State Prison, 
81 N.J. 571, 579-80 (1980)).

"'Substantial evidence' means 'such evidence as a reasonable mind

might accept as adequate to support a conclusion.'"            Figueroa v.

Dep't of Corr., 
414 N.J. Super. 186, 192 (App. Div. 2010) (quoting

In re Pub. Serv. Elec. & Gas Co., 
35 N.J. 358, 376 (1961)).               The

note found in the pocket of Minor's shirt constitutes substantial

evidence.

         When reviewing a determination of the DOC in a matter

involving prisoner discipline, we consider not only whether there

is substantial evidence that the inmate committed the prohibited

act, but also whether, in making its decision, the DOC followed

regulations adopted to afford inmates procedural due process.             See

McDonald    v.   Pinchak,   
139 N.J.   188,    194-96   (1995).     Prison

disciplinary hearings are not part of a criminal prosecution, and

the full spectrum of rights due to a criminal defendant does not

apply.   Avant v. Clifford, 
67 N.J. 496, 522 (1975).

     Minor complains on appeal that he asked for a polygraph

examination that was not afforded to him.           We have held that "an

inmate's right to a polygraph is conditional and that the request

should be granted when there is a serious question of credibility

and the denial of the examination would compromise the fundamental


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fairness of the disciplinary process."             Ramirez, 
382 N.J. Super.

at 20.   We made clear that an inmate's request for a polygraph

under N.J.A.C. 10A:3-7.1 is "not required on every occasion that

an inmate denies a disciplinary charge against him."                 Id. at 23-

24.

      Minor   also    complains      that    his   hearing    and    subsequent

administrative       review   were    both    delayed   by    several        days.

The six-day delay prior to his hearing was necessitated by unusual

administrative requirements.          See N.J.A.C. 10A:4-9.8(c).             After

his   administrative      appeal     was     decided,   the     decision        was

communicated to Minor a week later.            This delay is unexplained,

but does not impact Minor's due process rights.

      Minor   claims,    without     substantiation,     that       the   hearing

officer was biased against him and never believes inmates, and

that the sanctions imposed were overly severe. Minor was convicted

of an asterisk offense.         Asterisk offenses "are considered the

most serious and result in the most severe sanctions."                    N.J.A.C.

10A:4-4.1(a).     Minor's arguments, those described here and others

not fully set forth, are without sufficient merit to require

further discussion in a written opinion.            R. 2:11-3(e)(1)(E).

      Affirmed.




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