Opinion
DOCKET NO. A-3545-12T4
11-10-2014
CASEY O'BRIEN, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Casey O'Brien, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Kennedy. On appeal from the New Jersey Department of Corrections. Casey O'Brien, 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
Inmate Casey O'Brien appeals from a final agency decision by the Department of Corrections (DOC) that upheld the findings of guilt and sanctions imposed on certain disciplinary charges. We affirm.
These charges followed after telephone conversations intercepted between O'Brien and his mother revealed that he instructed her to send Suboxin, a Schedule 3 narcotic, to him through the mail. Subsequently, a corrections officer processing mail at the prison discovered the Suboxin in an envelope addressed to O'Brien, concealed underneath stickers stuck to the backs of photographs in a manner consistent with what O'Brien and his mother had discussed in their conversations.
When confronted, O'Brien denied all involvement in requesting or obtaining any controlled dangerous substances through the mail. He was issued disciplinary charges for prohibited acts *.803/*.203, attempting to possess or introduce any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff; .305, lying, providing a false statement to a staff member; .701, unauthorized use of mail or telephone; and *.704, perpetrating frauds, deceptions, confidence games, riots or escape plots, in violation of N.J.A.C. 10A:4-4.1(a).
O'Brien pleaded not guilty to the charges and was granted the assistance of a counsel substitute. The disciplinary hearing was postponed so O'Brien could listen to the recordings of his telephone conversations with his mother. O'Brien did not ask to call any witnesses or to confront any adverse witnesses and relied on his statement that he never received Suboxin or any other CDS.
The hearing officer found O'Brien guilty of all charges. The following sanctions were imposed:
| Charge | Sanction |
| *.803/*.203 | 365 days of administrative segregation Loss of 365 days of commutation time |
| .305 | 10 days of detention with credit for time served 90 days of administrative segregation Loss of 60 days of commutation time |
| .701 | 10 days of detention with credit for time served 90 days of administrative segregation Loss of 60 days of commutation time |
| *.704 | 10 days of detention with credit for time served 210 days of administrative segregation Loss of 210 days of commutation time |
O'Brien filed an administrative appeal in which he asked that the fact finding of guilt be rescinded and stated the hearing officer's decision violated DOC standards and misinterpreted the facts. He argued he was not in receipt of any controlled dangerous substances and that there was no "SOLID EVIDENCE" that he "had any true intent to possess CDS specifically SOBOXIN [sic]." The Associate Administrator of the DOC upheld the decision of the hearing officer.
In his appeal, O'Brien contends the DOC
A) Has added him hardship.
B) Not shown him any mercy considering he never introduced drugs into the facility under his own control.
C) Made up the charge of lying to a staff member.
D) Made up the charge of deception.
E) Has prevented appellant from going home early because of charges that were ultimately out of his control. On I.S.P. [sic].
We construe these arguments as challenging the veracity of the proof supporting the charges of .305, lying, providing a false statement to a staff member; and *.704, perpetrating frauds, deceptions, confidence games, riots or escape plots, in violation of N.J.A.C. 10A:4-4.1(a); and protesting the sanctions imposed as unduly punitive.
Our review of the DOC's decision is limited. We will only reverse when the agency's decision "is arbitrary, capricious or unreasonable," or unsupported "by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (the court must uphold an agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).
An inmate is not entitled to "the full panoply of rights" in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33. The record shows that the disciplinary process here did not violate O'Brien's due process rights and O'Brien does not argue to the contrary.
We therefore turn to assessing the record to determine whether there is sufficient credible evidence to support the DOC decision. The evidence included the intercepted and recorded conversations between O'Brien and his mother, in which he asked her to send him Suboxin and they discussed the manner in which this would be done, as well as the recovery of the Suboxin in the manner described; O'Brien's denials to staff; and the concealment of the Suboxin under stickers in the envelope addressed to him. There was, therefore, ample evidence to support findings of guilt on all the disciplinary charges. We do not find either the findings of guilt or the sanctions imposed to be arbitrary, capricious or unreasonable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION