Opinion
DOCKET NO. A-4532-10T3
05-29-2012
DAVID LEMMON, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
David Lemmon, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
On appeal from the New Jersey Department of Corrections.
David Lemmon, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief). PER CURIAM
Appellant David Lemmon, who is currently incarcerated at Northern State Prison (Northern State), appeals from the final administrative decision of the Department of Corrections (DOC) finding him guilty of disciplinary infraction *.204, use of any prohibited substances in a state prison, not prescribed to an inmate by the medical staff. We reverse.
N.J.A.C. 10A:4-4.1(a)*.204.
On February 26, 2011, while Lemmon was residing at Kintock Group Halfway House (Kintock) in Newark, he was the subject of a random urine test. The preliminary field test on his urine sample indicated the presence of opiates. Because of the positive preliminary result, Lemmon was transported to Northern State. Upon arrival, he was ordered to give another urine sample. Both urine samples were sent to the New Jersey Department of Health and Senior Services for testing.
On March 2, Lemmon was transferred to the Central Reception and Assignment Facility (CRAF). The March 1 report on the Kintock sample was positive for use of opiates. Lemmon was charged with disciplinary infraction .204A, use by an inmate, who is assigned to a Residential Community Program, of any prohibited substances not prescribed by the medical staff.
N.J.A.C. 10A:4-4.1(a).204A.
On March 7, Disciplinary Hearing Officer Norma Morales conducted a hearing with respect to the .204A disciplinary charge. She found Lemmon not guilty because the chain of custody document for the urine sample had not been completed properly.
On March 23, 2011, appellant was transported from CRAF to Southern State Correctional Facility (Southern State). On April 15, 2011, Lemmon was charged with disciplinary infraction *.204and was placed in pre-hearing detention. That charge was premised on the positive result of Lemmon's urine sample taken when he arrived at Northern State on February 26. The test results, which were dated March 2, indicated use of opiates.
N.J.A.C. 10A:4-4.1(a)*.204. Disciplinary infractions preceded by an "asterisk (*) are considered the most serious and result in the most severe sanctions."
On April 18, Disciplinary Hearing Officer Elizabeth DiBenedetto conducted a hearing regarding the *.204 charge. At the hearing, Lemmon pled guilty and admitted to having taken "some oxycotin."
On April 29, DiBenedetto found Lemmon guilty of the *.204 charge. She relied upon Lemmon's statement that he had used oxycotin and the positive urine test. She imposed sanctions of 15 days detention, 300 days of administrative segregation, and 300 days of lost commutation time.
Lemmon filed an administrative appeal. His appeal was based, in part, on the argument that there was no proof that the offense took place at Northern State. The associate administrator at Southern State denied the appeal, explaining his reasons as follows:
[Lemmon's] claim of the infraction being committed at a residential Halfway House setting could not be verified, record indicates that the order to void [the positive urine sample] was given to [Lemmon] at a prison complex (NSP). [Lemmon's] actions violate the Zero Tolerance drug and alcohol policy as defined in N.J.A.C. 10A:1-2.2. [Lemmon's] plea of guilt to the Hearing Officer accepting responsibility for [his] actions is also noted, therefore, I must hold [him] accountable. This type of behavior warrants no leniency, the sanction is proportionate to the offense.This appeal followed.
On appeal, Lemmon contends he was wrongfully charged twice for the same infraction, violating the doctrine of double jeopardy. In addition, he argues that he was not properly notified of the charges within twenty-four hours of the offense and that there were irregularities regarding the fact findings.
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) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell, supra). 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.) (citations omitted), certif. denied, 102 N.J. 337 (1985).
Based upon our review of the record, we conclude that there was no factual basis for the finding at the second disciplinary hearing that Lemmon used illegal substances at Northern State on February 26, which was the charge against him at the time. The first urine sample was taken at 12:37 p.m. at Kintock. Lemmon was transferred to Northern State and required to give another sample when he arrived at 4:17 p.m. DOC offered no testimony that Lemmon used any illegal substance during the trip or upon arrival at Northern State.
Although there is evidence in the record, including Lemmon's own admission, that Lemmon used oxycotin while at Kintock, which is a .204A offense, there is none that he used it at Northern State. Nevertheless, he was convicted of the *.204 offense, which (1) prohibits use in a prison and (2), as a starred offense, is more serious than the .204A offense. Compare N.J.A.C. 10A:4-5.1(a), and -5.1(c), with N.J.A.C. 10A:4-5.1(b). The net result of DOC's actions is that Lemmon was disciplined for the more serious offense because DOC was unable to prove the less serious offense due to its own administrative error.
The associate administrator's response to Lemmon's administrative appeal, that DOC could not verify that the use of the unprescribed opiate took place at Kintock as opposed to Northern State, improperly shifts the burden of proof to Lemmon. DOC was required to demonstrate that the use was at Northern State to support the *.204 violation charged.
We conclude that DOC acted in an arbitrary and capricious manner in disciplining Lemmon for violating *.204 in the absence of proof that the offense actually took place during the brief time between his arrival at Northern State and the arrival drug test, an element of the offense. Consequently, we reverse the finding of a *.204 violation and the resulting discipline.
We need not reach Lemmon's double jeopardy argument. For discussions regarding the applicability of double jeopardy protections to prison disciplinary proceedings, see Balagun v. New Jersey Department of Corrections, 361 N.J. Super. 199, 205-06 (App. Div. 2003), and Russo v. New Jersey Department of Corrections, 324 N.J. Super. 576, 585-86 (App. Div. 1999).
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Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION