Opinion
DOCKET NO. A-6016-09T2
08-24-2012
MICHAEL ELLIS, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Michael Ellis, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Charles S. Cohen, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz, Waugh and St. John.
On appeal from the New Jersey Department of Corrections.
Michael Ellis, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Charles S. Cohen, Deputy Attorney General, on the brief). PER CURIAM
Appellant Michael Ellis, an inmate, appeals from a final determination of the Department of Corrections (DOC), concluding Ellis was guilty of prohibited acts: *202 (possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool); *203 (possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff); and *803 (attempting to commit an asterisk offense, aiding another person to commit any such act or making plans to commit such acts). On appeal Ellis argues:
POINT IWe affirm.
THE APPELLANT WAS CHARGED IN RETALIATION FOR THE EXERCISE OF THE CONSTITUTIONAL RIGHT OF REDRESS (OF WHICH THE APPELLANT HAS MADE A PRIMA FACI[E] CASE ACCORDING TO CASE LAW). IF THE *.803/*.203 WAS A FALSE CHARGE IN RETALIATION, SO WAS THE *.202, WEAPONS CHARGE. THE APPELLANT WAS SET-UP.
A. THE HOOCH CHARGE. HOOCH IS SLANG FOR ALCOHOL MADE FROM MOLDY BREAD AND FRUIT JUICE. BECAUSE OF THE WAY THAT THE *.803/*.203 CHARGE WAS HANDLED BY THE H.O. THERE IS NOT ENOUGH EVIDENCE FOR A FINDING OF GUILT.
POINT II
THE *.202 (INTRODUCTION OF A WEAPONS CHARGE) SAME OFFICERS SAME CHARGES.
These facts are established in the administrative record. On June 10, 2010, while Ellis was confined to the Adult Diagnostic and Treatment Center (ADTC), Senior Corrections Officer (SCO) R. Renales discovered a note on his desk advising Ellis had "some type of illegal cutting device under [his] mattress." During a cell check, SCO Renales found "a homemade weapon consisting of one razorblade glued between two popsicle sticks" under Ellis's bed. Also, SCO Renales discovered a "peanut butter jar containing what appear[ed] to be orange rin[d]s and sugar in liquid" in Ellis's footlocker. SCO Renales suspected the liquid contained homemade alcohol or "hooch," because it "popped" when opened, "as if under pressure."
Ellis did not enter a plea to the *202 charge (possession of a weapon), but claimed he was "set up." He pled not guilty to the *203 and *803 charges, maintaining the orange water was "fabric softener" used for his laundry. Ellis, represented by counsel substitute, did not submit a request for confrontation of witnesses.
The hearing officer (HO) considered the documentary and physical evidence, including the homemade knife and the jar of orange water. The HO found Ellis guilty of prohibited act *202, for which he was sanctioned ten days detention, 125 days administrative segregation, and 125 days loss of commutation time. Regarding the other charges, the HO rejected Ellis's contention the liquid was a laundry additive, remarking, "you could smell alcohol on top" of the jar, observing the liquid "was bubbling around the sides." Ellis was found guilty of both prohibited acts *203 and *803, for which he received consecutive sanctions of fifteen days detention, permanent loss of contact visits, 185 days administrative segregation, 185 days loss of commutation time, and 35 days loss of recreational privileges.
Ellis appealed these findings and conclusions. Robert Chetirkin, the Assistant Superintendent, of the ADTC upheld the HO's decision. This appeal ensued.
The scope of our review of an administrative agency's final decision is strictly limited. George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Our review is restricted to four inquiries: 1) whether the agency's decision is contrary to the State or Federal Constitution; 2) whether the agency's action violates either express or implied legislative policies; 3) whether there is substantial credible evidence in the record as a whole to support the agency's decision; and 4) whether, in applying the law to the facts, the agency clearly erred in reaching a decision that could not reasonably have been made on consideration of the relevant factors. Ibid. Having carefully considered the record in light of this standard of review, we are convinced that the DOC's determination does not violate these standards. Figueroa v. Dep't of Corrs., 414 N.J. Super. 186, 191 (App. Div. 2010) (holding agency decisions carry a presumption of reasonableness).
For the first time, Ellis argues SCO Renales's discovery of the homemade knife taped under his bed was retaliatory, explaining Ellis had filed a grievance alleging SCO Renales humiliated him in the bathroom facilities two days earlier. The failure to raise the issue during the administrative appeal process prohibits our consideration of the retaliatory claims on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
For completeness, we nevertheless consider the merits of Ellis's argument and find them lacking. To support his claim, Ellis attaches other DOC disciplinary determinations involving Renales and inmates charged with violating *202. In each case, Renales received an anonymous note revealing the inmate's possession of a weapon taped to his bed frame. Ellis suggests these repeated circumstances substantiate his belief of Renales's retaliatory conduct. We disagree.
Evidence that other prisoners were similarly charged for the same offense does not refute the DOC'S proofs showing Ellis possessed a weapon. The record shows the HO reviewed Renales's report and examined the weapon found taped to Ellis's bed. There is no countervailing evidence to refute Ellis's possession of the homemade knife.
Ellis also challenges the sufficiency of the evidence supporting the determination he was making alcohol. He suggests proof that the jar contained alcohol must include expert testimony and a chemical test of the orange-water. He also maintains a determination of guilt made without expert testing violated his due process rights. We conclude these arguments are meritless. R. 2:11-3(e)(1)(E).
SCO Renales reported he detected the odor of alcohol on the jar and the container of liquid "popped" when it was first opened. In addition, the HO smelled and examined the liquid, independently determining it was alcohol.
The smell of alcohol is an issue of common knowledge of a lay person, see e.g., State v. Smith, 58 N.J. 202, 213 (1971) (commenting the symptoms of being under the influence of alcohol "have become such common knowledge" and admitting the testimony of a lay person on the issue), and certainly falls within the knowledge of a trained corrections officer, see State v. Bealor, 187 N.J. 574, 587 (2006) (stating an expert's opinion is not typically required to establish a fact that is within the realm of "common knowledge"). A determination the seized liquid contained alcohol is not a finding requiring expert testimony.
Accordingly, in light of the record and applicable law, we reject Ellis's arguments and determine the DOC's disciplinary determinations are supported by sufficient credible evidence contained in the record. Further, Ellis was afforded all applicable procedural protections in the proceedings. McDonald v. Pinchak, 139 N.J. 188, 184 (1995) (holding prisoners are not entitled to the same due process rights as free persons); Avant v. Clifford, 67 N.J. 496, 522 (1975) (same).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION