DAVID SPENCER 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NOT FOR PUBLICATION WITHOUT THE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-4946-16T3

DAVID SPENCER,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted December 12, 2018 – Decided February 5, 2019

                    Before Judges Vernoia and Moynihan.

                    On appeal from the New Jersey Department of
                    Corrections.

                    David Spencer, appellant pro se.

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

PER CURIAM
      Appellant David Spencer appeals from a New Jersey Department of

Corrections (DOC) final agency decision upholding the disciplinary hearing

officer's (DHO) decision finding appellant guilty of committing prohibited acts

under N.J.A.C. 10A:4-4.1(a): .009A for "misuse, possession, distribution, sale,

or intent to distribute or sell, an electronic communication device . . . that is not

authorized for use or detention by an inmate who is assigned to a [r]esidential

[c]ommunity     [r]elease   [p]rogram,"       N.J.A.C.   10A:4-4.1(a)(3)(i);    *.207,

prohibiting "possession of money or currency (in excess of $50.00) unless

specifically authorized," N.J.A.C. 10A:4-4.1(a)(2)(xviii); .257 for "violating a

condition of any [r]esidential [c]ommunity [p]rogram and or [r]esidential

[c]ommunity [r]elease [p]rogram," N.J.A.C. 10A:4-4.1(a)(5)(iv); and .305

prohibiting "lying[] [or] providing a false statement to a staff member," N.J.A.C.

10A:4-4.1(a)(4)(iv).

      The record evidence relied upon by the DHO confirms that the charges

arose from an incident at a community release program facility where appellant

was assigned. After appellant returned to the facility from a work detail, the

shift supervisor conducted a pat-down search and felt what he believed to be

contraband concealed in appellant's groin area. Security-wand passes of the area

were positive. Appellant denied possessing any contraband. He refused five


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directives to enter a holding cell and left the area where the search was

conducted. DOC officers later removed appellant from the facility and returned

him to East Jersey State Prison. There, he reported that the supervisor touched

his genitals during the search. That allegation triggered Prison Rape Elimination

Act1 protocol, part of which entailed a review of appellant's telephone

communications. During the review, a DOC investigator discovered a telephone

communication made by appellant the day after the incident at the facility during

which he discussed both $300 and a cell phone. As to the former, he asked if

the other party received the cash. As to the latter, he told the other party to keep

the phone, described the supervisor's attempt to search him, discussed how he

denied possession of any contraband and admitted he passed his "shit off" when

he left the area, stating, "all this time I had it in my [b]riefs."

       Appellant contends the DHO's findings were not based on substantial

evidence that he committed the prohibited acts, N.J.A.C. 10A:4-9.15, because:

the reports relied upon by the DHO "may have been false or altered"; it was "not

right [or] legal" for the DHO to rely "only on the evidence being presented by

staff and not the violator"; and the physical evidence appellant was alleged to

have possessed – a cell phone and $300 – was not immediately seized and was


 1 See 34 U.S.C. §§ 30301 to 30309.
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not produced at the hearing. Appellant also argues the DHO "made a pre-

disposed opinion regarding [his] guilt" as shown by the summary of evidence

she wrote in the Adjudication of Disciplinary Charge and that the charges

against him were inaccurate and motivated only by his complaint that the

supervisor of the community release facility "touched him inappropri ately"

during a pat-down search. We are unpersuaded by any of appellant's arguments

and affirm.

      The Legislature vested the DOC with broad discretion in matters

concerning facilities management, including offender discipline. Russo v. N.J.

Dep't of Corr.,  324 N.J. Super. 576, 583 (App. Div. 1999). In our limited role

reviewing a prison disciplinary decision, we determine the hearing officer's

decision was based on substantial evidence in the record in compliance with

N.J.A.C. 10A:4-9.15(a), Figueroa v. Dep't of Corr.,  414 N.J. Super. 186, 190-91

(App. Div. 2010), "'[s]ubstantial evidence' [being] 'such evidence as a

reasonable mind might accept as adequate to support a conclusion,'" id. at 192

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

      The record indicates appellant and his counsel-substitute listened to the

recorded telephone call. The DHO, after a hearing at which appellant was

provided counsel-substitute, found: the reports regarding the supervisor's pat-


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                                      4
down search and wanding, together with her review of the telephone call made

by appellant, proved the 009A and *.207 charges; although appellant submitted

to the pat-down search and wanding, the reports of appellant's refusal to enter

the holding cell and leaving the area after the searches indicated a concealed

item proved the .257 violation; and the reports of his denial of possession of

contraband, together with the evidence supporting that he possessed it, proved

the .305 charge.

      The DHO considered and rejected appellant's explanations and defenses:

(1) possession of the phone could not be proved without the immediate seizure

of the phone and production of same at the hearing; (2) the possession of money

charge could not be proved by mere discussion of it during a telephone call; (3)

he allowed the supervisor's pat-down search, thus complying with the program's

rules; and (4) he did not lie to staff because he never made the allegation that

the supervisor inappropriately touched him or, as alternatively argued by

counsel-substitute, he did not deliberately intend to deceive staff. The totality

of the evidence presented, including the reports and appellant's recorded

telephone communications, is substantial evidence supporting the DHO's

findings that appellant committed the charged prohibited acts. N.J.A.C. 10A:4-




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9.14(a); Figueroa,  414 N.J. Super. at 191-92. We also note, appellant's actions

prevented the immediate seizure of the contraband.

      We determine appellant's arguments regarding the DHO's prejudgment of

the case and that the false charges were motivated by his complaint about the

supervisor's touching of appellant's genitals to be without sufficient merit to

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

      Affirmed.




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