Opinion
DOCKET NO. A-2128-14T1
04-05-2016
RENE ACEVEDO, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Rene Acevedo, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Nicole E. Adams, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the New Jersey Department of Corrections. Rene Acevedo, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Nicole E. Adams, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Appellant Rene Acevedo appeals from the final agency decision of the Department of Corrections that he committed prohibited act *.204, use of a prohibited substance not prescribed for the inmate by the medical or dental staff, N.J.A.C. 10A:4-4.1(a), while an inmate at Bayside State Prison. We affirm.
I.
On May 8, 2014, appellant submitted a urine sample during a random drug test. A field test conducted that day indicated there was THC in his specimen. The specimen was subsequently delivered to the Department of Corrections laboratory for testing and, on May 27, 2014, the laboratory confirmed the presence of THC in the specimen.
Tetrahydrocannabinol (THC) is the active chemical in marijuana. --------
At 11:45 a.m. that same day, appellant was served with a disciplinary report alleging he had committed prohibited act *.204. The disciplinary hearing was conducted twenty minutes later. Before the hearing, appellant executed a document waiving his right to have twenty-four hours to prepare his defense. See N.J.A.C. 10A:4-9.2.
Appellant, who appeared at the hearing with counsel substitute, pled not guilty. At the hearing appellant contended that when he submitted the specimen, the cup containing his urine did not "say anything" to indicate he had tested positive for THC. For that reason he challenged the test results indicating otherwise. He was offered but declined the opportunity to call or confront any witnesses.
On the basis of the test results on his urine specimen, the hearing officer found appellant guilty of prohibited act *.204, and sanctioned him to fifteen days of detention, 210 days of administrative segregation, 210 days of loss of commutation time, 360 days of random urine monitoring, and a loss of contact visits. Appellant filed an administrative appeal, contending he had not ingested THC before the test and that the field test taken the day of the test was not positive for this substance. He also argued specimens had been "mixed up" and requested a review of the continuity of evidence form. However, an assistant superintendent affirmed the hearing officer's decision.
II.
Defendant raises the following arguments in support of his appeal:
POINT I - BASIC RIGHTS WERE VIOLATED
POINT II - THE HEARING OFFICER DID NOT GIVE SUFFICIENT WEIGHT TO MY STATEMENT
POINT III - THE PARALEGAL WAS INEFFECTIVE
Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). We will not disturb the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable; that is, (1) "the agency's action violates express[ed] or implied legislative policies"; (2) "the record [does not] contain[] substantial evidence to support the findings on which the agency based its action"; and (3) "in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Circus Liquors, supra, 199 N.J. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)); see also In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
Further, decisions of administrative agencies carry with them a presumption of reasonableness. Newark v. Nat. Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). An appellate court may not reverse an agency's determination "even if [the] court may have reached a different result had it been the initial decision maker." Circus Liquors, supra, 199 N.J. at 10. Stated otherwise, a court "may not simply 'substitute its own judgment for the agency's.'" Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)).
Addressing his first argument point, appellant raises for the first time on appeal that because he was not given twenty- four hours to prepare for the disciplinary hearing after being served with the disciplinary report, his rights were violated under N.J.A.C. 10A:4-9.2. He further claims his counsel substitute was not afforded a reasonable period of time to speak with him and prepare a defense, in violation of N.J.A.C. 10A:4-9.12(d). Finally, he maintains the signature line on the Adjudication of Disciplinary Charge form ("form") that an inmate must sign to waive his right to have twenty-four hours to prepare for his defense before the hearing commences was unsigned.
Because these arguments were neither raised before the hearing officer nor on administrative appeal, they are not properly before us. We decline to consider questions or issues not properly presented below when an opportunity for such a presentation is available, unless the questions raised on appeal concern jurisdiction or matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Appellant's contentions do not satisfy the Nieder exceptions. We thus do not address these particular arguments, except to make the following observations.
On the copy of the form provided by respondent, appellant's signature clearly appears on the subject line, thus indicating he waived his right to have twenty-four hours before the hearing could start. His signature also appears on the copy of the form he provided, although the signature on his copy is approximately three-quarters of an inch above the subject line.
As respondent explained in its brief, the original form has attached to it carbonless copies. Appellant signed on the subject line on the original form but, when he did so, the copies were not aligned properly with the original page, making the signature on his copy appear above the line. We note further there is no other place on the first page of the form on which an inmate may place his signature. Therefore, there would be no reason for appellant to have signed this document unless he wanted to show he was waiving his right to have twenty-four hours to prepare his defense before the hearing.
As for his second argument point, appellant complains that despite pointing out at the hearing that "none of the indicators on the side of cup had come up positive," the hearing officer nevertheless found his urine sample positive for THC. Appellant also complains neither he nor counsel substitute were able to view the continuity of evidence form, and that there was no evidence before the hearing officer setting forth how the sample was protected from contamination. He concedes there may not have been any contamination, but nonetheless is critical he was not given the opportunity to review the paperwork necessary to assure himself the sample was properly handled.
First, although appellant claims the cup did not indicate his urine was positive for THC, the field test conducted that day showed that it was and the laboratory testing confirmed that finding. The results of those tests constitute sufficient evidence to support the hearing officer's conclusions, which were subsequently affirmed on administrative appeal. We are not at liberty to reverse an agency's determination if supported by substantial, credible evidence, which was the case here. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Second, there is no evidence the sample was contaminated or "mixed-up." While appellant complains he was unable to view any documents to confirm there was no contamination, he does not identify what on the continuity of evidence form indicates there was any mishandling of the urine specimen.
Appellant's final argument point — that his counsel substitute was ineffective — was not raised before the agency. Accordingly, we decline to address this argument. Nieder, supra, 62 N.J. at 234.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION