Opinion
DOCKET NO. A-4165-12T1
06-16-2014
AL-TAHEED FRANKLIN, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Al-Taheed Franklin, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Nugent.
On appeal from the New Jersey Department of Corrections.
Al-Taheed Franklin, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief). PER CURIAM
Appellant Al-Taheed Franklin appeals the final agency decision of the Department of Corrections (DOC) imposing discipline for violation of prohibited act *.009, "misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device," in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
On March 9, 2013, a senior corrections officer searched the cell Franklin shared with another prisoner at Northern State Prison. A cellular telephone, wrapped in a paper and sock, was found on Franklin's bunk bed. Disciplinary charges were served on March 10.
The hearing began on March 11, at which time Franklin pled not guilty and requested a counsel substitute. The request was granted and the hearing was adjourned to March 12 so the counsel substitute could prepare. The hearing officer found Franklin guilty of the charge on March 12, and imposed sanctions of fifteen days detention with credit for time served, 365 days of administrative segregation, 365 days loss of commutation time, and thirty days loss of recreation privileges. Franklin filed an administrative appeal. On March 21, the assistant superintendent upheld the hearing officer's adjudication of guilt and the sanctions imposed. This appeal followed.
On appeal, Franklin argues that he was denied procedural due process and equal protection and that there was insufficient evidence to warrant a finding of guilt. Franklin's argument is based primarily on his position that his cellmate had taken full responsibility for possession of the cellular phone. He also argues that the sanctions imposed were excessive.
Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Substantial evidence constituting fair support is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).
Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).
Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). The DOC must facilitate an informal hearing to ensure that disciplinary findings are based upon verified facts and the use of discretion is informed by accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that the DOC's regulations for disciplinary hearings "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.
Our review of the record before us in light of the applicable law convinces us that Franklin's arguments are without merit. Although they do not warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), we add the following.
Franklin received the level of due process required by Avant, including written notice prior to the hearing, the assistance of a counsel substitute, and the opportunity to speak in his own defense, to request confrontation of witnesses, and to present witness statements. Franklin chose not to speak at the hearing and also opted not to seek confrontation of adverse witnesses or to present statements from witnesses on his behalf. Significantly, Franklin did not present a witness statement from his cellmate, whom he now contends on appeal took full responsibility for the cellular phone, an assertion not supported in the record before us.
We are satisfied that the finding of the cellphone on the bunk bed assigned to Franklin provided a sufficient factual basis for guilt, especially in light of the fact that Franklin offered no contrary evidence. We find no basis to question the sanctions imposed by the hearing officer and upheld by the assistant superintendent.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION