JOSEPH KELLY 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NOT FOR PUBLICATION WITHOUT THE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-2716-18

JOSEPH KELLY,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                    Submitted March 11, 2020 – Decided February 11, 2021

                    Before Judges Fuentes and Haas

                    On appeal from the New Jersey Department of
                    Corrections.

                    Joseph Kelly, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Sookie Bae, Assistant Attorney General, of
                    counsel; Travis Michael Anderson, Deputy Attorney
                    General, on the brief).

          The opinion of the court was delivered by

FUENTES, P.J.A.D.
      Appellant Joseph Kelly is an inmate at South Woods State Prison serving

a five-year term for possession of an unspecified dangerous substance. In this

inmate disciplinary infraction case, appellant was charged and found guilty of

committing disciplinary infraction *.203, possession of a synthetic cannabinoid.

He argues he was denied effective assistance of counsel substitute. A counsel

substitute is not a lawyer.1 There are no standards to assess the effectiveness of

a counsel substitute.   Appellant has not cited to any legal authority which

permits an inmate facing disciplinary sanctions in a penal institution's

disciplinary proceeding to argue he or she is entitled to challenge the fairness of

the proceedings based on the performance of a counsel substitute.

      The record shows there was sufficient evidence to support the hearing

officer's determination. A corrections officer saw appellant and another inmate

sitting on the bottom bunk of their cell and in possession of a leafy substance.

The corrections officer immediately sought the assistance of another corrections

officer and they seized a plastic baggie containing this contraband, which

substance tested positive for K2, a synthetic cannabinoid.


 1 N.J.A.C. 10A:1-2.2 defines counsel substitute as "an individual, such as an
inmate paralegal, teacher or social worker, who represents and defends an
inmate at a disciplinary hearing proceeding that is conducted within a
correctional facility under the jurisdiction of the Department of Corrections. "
                                                                             A-2716-18
                                        2
      This court's authority to review a decision of a State administrative agency

is limited. In re Taylor,  158 N.J. 644, 656 (1999). We will not disturb an

agency's adjudicatory decision unless there is evidence that the decision is

"arbitrary, capricious or unreasonable," or is unsupported "by substantial

credible evidence in the record as a whole." Henry v. Rahway State Prison,  81 N.J. 571, 579-80 (1980). Here, the record reflects that the Department of

Corrections presented substantial credible evidence to support the hearing

officer's finding that appellant committed disciplinary infraction *.203.

Figueroa v. N.J. Dep't of Corr.,  414 N.J. Super. 186, 192 (App. Div. 2010); see

also N.J.A.C. 10A:4-9.15(a).

      Affirmed.




                                                                            A-2716-18
                                        3