RICKY JAMES 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NOT FOR PUBLICATION WITHOUT THE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-3920-18T2

RICKY JAMES,

          Appellant,

v.

NEW JERSEY
DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________

                   Submitted November 5, 2020 – Decided December 30, 2020

                   Before Judges Alvarez and Mitterhoff.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Ricky James, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sookie Bae, Assistant Attorney General, of
                   counsel; Niccole L. Sandora, Deputy Attorney General,
                   on the brief).

PER CURIAM
      Ricky James, an inmate at South Woods State Prison, appeals from a

March 29, 2019 final order of the New Jersey Department of Corrections (DOC),

adjudicating him guilty of *.203 – possession of a prohibited substance. James

was sanctioned with 180 days of administrative segregation, 90 days' loss of

commutation time, 10 days' loss of recreation privileges, permanent loss of

contact visits, and 365 days' urine monitoring. Based on our review of the record

and the governing law, we affirm.

      The essential facts, adduced before a hearing officer were based on the

testimony of Sergeant McDermott, a preliminary incident report prepared by

McDermott, a Special Investigation Division report identifying the contraband

as Suboxone, an authorization for prehearing disciplinary housing placement

report, a seizure of contraband report, an inmate receipt for seizure of

contraband, and video footage. That evidence reveals that on March 25, 2019,

at approximately 10:55 a.m., Sergeant McDermott observed James "acting

suspicious fumbling with something in his pocket" while returning from the

prison's visitation hall. McDermott searched James and found a folded piece of

cardboard, approximately one by one-and-a-half inches, wrapped in plastic

inside of James' coat pocket. When confronted, James admitted to McDermott

the folded cardboard contained Suboxone. McDermott confiscated the package

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and placed James in restraints. Id. McDermott gave the package to another

officer who placed it in the evidence storage locker located in the central control

room. James was placed in prehearing disciplinary housing.

      On March 26, 2018, James was charged with *.203 – possession of a

prohibited substance. He received notice of the charge the same day. Id. A

disciplinary hearing was scheduled for March 27, 2019, but was postponed to

accommodate James' request for video footage of the incident. 1 The disciplinary

hearing was held the following day.

      On March 28, 2019, James plead not guilty. The hearing officer heard

McDermott's testimony and considered several DOC documents related to the

incident, including a report prepared by the Special Investigations Division. The

report indicated that an investigator had assessed the contraband and concluded,

based on its shape, color, and markings, that it was "Suboxone sublingual film

8mg." The report indicates that the contraband was discovered in the prison's

mailroom, not on James's person.




1
  James alleged that he was not wearing a coat while in the visitation hall, and
the video would prove McDermott's account was unreliable. The hearing officer
found that the video showed inmates hanging their coats up outside the visitation
hall, so fact that James was not wearing one while inside was of no consequence.
Id.
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      James, with the assistance of a counsel substitute, testified in his defense.

He denied possessing a prohibited substance and asserted that he never made the

alleged admission to McDermott. Notably, James chose not to cross-examine

McDermott or call any witnesses to challenge the reports. James and his counsel

substitute were shown the adjudication report and a list of evidence the hearing

officer relied upon. At the conclusion of the hearing, James was found guilty.

      James administratively appealed the decision of the hearing officer. On

March 29, 2019, a DOC Assistant Superintendent upheld the finding of guilt and

sanctions imposed.

      On appeal, James presents the following issues for our review:

               POINT I

               THE APPELLANT SUBMITS THAT THE
               HEARING OFFICER ERRED BY ALLOWING
               EVIDENCE INTO THE HEARING WITH A
               FINDING OF GUILT WHICH HAD NOT BEEN
               VERIFIED AS DRUGS BY LABORATORY
               REPORTS AND/OR TESTING [CONSISTENT]
               WITH DEPARTMENT OF CORRECTIONS
               POLICY AND PROCEDURE

               POINT II

               THE EVIDENCE RELIED ON BY THE HEARING
               OFFICER    WAS    NOT     BASED    ON
               SUBSTANSTIAL CREDIBLE EVIDENCE AND
               THAT APPELLANT MUST BE APPRISED OF
               MATERIAL IN ORDER TO PREPARE A PROPER

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                DEFENSE THUS SHIFTING THE BURDEN OF
                PROOF ON THE APPELLANT

      Our review of an administrative agency's decision is limited. See In re

Stallworth,  208 N.J. 182, 194 (2011). We "afford[] a 'strong presumption of

reasonableness' to an administrative agency's exercise of its statutorily delegated

responsibilities." Lavezzi v. State,  219 N.J. 163, 171 (2014) (quoting City of

Newark v. Nat. Res. Council, Dep't of Env't Prot.,  82 N.J. 530, 539 (1980)).

Thus, "[w]ithout a 'clear showing' that it is arbitrary, capricious, or

unreasonable, or that it lacks fair support in the record, an administrati ve

agency's final . . . decision should be sustained, regardless of whether a

reviewing court would have reached a different conclusion in the first instance."

Circus Liquors, Inc. v. Governing Body of Middletown Twp.,  199 N.J. 1, 9

(2009) (quoting In re Herrmann,  192 N.J. 19, 27 (2007)).

      An inmate is not accorded the full panoply of rights in a disciplinary

proceeding afforded a defendant in a criminal prosecution. Avant v. Clifford,

 67 N.J. 496, 522 (1975). Instead, prisoners are entitled to: (1) written notice of

the charges at least twenty-four hours prior to the hearing; (2) an impartial

tribunal; (3) a limited right to call witnesses and present documentary evidence;

(4) a limited right to confront and cross-examine adverse witnesses at a hearing;

(5) a right to a written statement of the evidence relied upon and the reasons for

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the sanctions imposed; and (6) where the charges are complex, the assistance of

a counsel substitute. Id. at 525-33; accord Jacobs v. Stephens,  139 N.J. 212, 215

(1995); McDonald v. Pinchak,  139 N.J. 188, 192 (1995).

      N.J.A.C. 10A:4-9.15(a) requires a finding of guilt at a disciplinary hearing

to be supported by substantial evidence. "'Substantial evidence' means 'such

evidence as a reasonable mind might accept as adequate to support a

conclusion.'" Figueroa v. New Jersey Dep't of Corr.,  414 N.J. Super. 186, 191-

92 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co.,  35 N.J. 358, 376

(1961)).

      We are satisfied James received all the procedural protections afforded to

inmates during disciplinary proceedings.      Timely notice was given of the

charges against him, and he received the assistance of a counsel substitute during

the hearing. James was allowed to testify in his defense, had the opportunity to

cross-examine adverse witnesses, and his request for video footage of the

incident was accommodated. He also received a description of the evidence the

hearing officer relied upon in making its determination.

      We reject James's argument that there was insufficient evidence to sustain

the finding of guilt. The evidence the hearing officer relied upon included

McDermott's testimony and the incident report he prepared immediately after


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discovery of the contraband. His testimony and report indicate James had

concealed a small piece of folded cardboard and admitted to possessing

Suboxone.     That admission is corroborated by the Special Investigations

Division report identifying the contraband as Suboxone.

      We note the discrepancy in the report stating the contraband was found in

the mailroom, not on James's person. However, even if the weight of the report

is discredited by the apparent oversight, the hearing officer was entitled to reject

James's claims that he never possessed, or admitted to possessing Suboxone.

McDermott's testimony and report provided substantial evidence that the inmate

possessed a prohibited substance. James was given the opportunity to challenge

that evidence through cross-examination of McDermott, or by presenting his

own witnesses, but did neither.

      James's claim that the respondent should have had the contraband tested

by the state lab is equally without merit. Unlike prohibited act *.204 – use of a

prohibited substance, state lab testing is not required to prove the chemical

make-up of a prohibited substance related to a *.203 charge. See Blanchard v.

New Jersey Dep't of Corr.,  461 N.J. Super. 231, 241 (App. Div. 2019) ("[T]he

regulation is nonetheless limited to 'specimens' drawn from an inmate's body,




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such as urine, blood, or saliva, and not substances the inmate actually or

constructively possesses.").

      Because the hearing officer's determination is supported by substantial

evidence, which includes James's admission that the contraband in question was

Soboxone, we discern no reason to disturb the DOC's finding of guilt.

      To the extent we have not addressed any of James's remaining arguments,

we conclude that they are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

      Affirmed.




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