NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3920-18T2
Submitted November 5, 2020 – Decided December 30, 2020
Before Judges Alvarez and Mitterhoff.
On appeal from the New Jersey Department of
Ricky James, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Niccole L. Sandora, Deputy Attorney General,
on the brief).
Ricky James, an inmate at South Woods State Prison, appeals from a
March 29, 2019 final order of the New Jersey Department of Corrections (DOC),
adjudicating him guilty of *.203 – possession of a prohibited substance. James
was sanctioned with 180 days of administrative segregation, 90 days' loss of
commutation time, 10 days' loss of recreation privileges, permanent loss of
contact visits, and 365 days' urine monitoring. Based on our review of the record
and the governing law, we affirm.
The essential facts, adduced before a hearing officer were based on the
testimony of Sergeant McDermott, a preliminary incident report prepared by
McDermott, a Special Investigation Division report identifying the contraband
as Suboxone, an authorization for prehearing disciplinary housing placement
report, a seizure of contraband report, an inmate receipt for seizure of
contraband, and video footage. That evidence reveals that on March 25, 2019,
at approximately 10:55 a.m., Sergeant McDermott observed James "acting
suspicious fumbling with something in his pocket" while returning from the
prison's visitation hall. McDermott searched James and found a folded piece of
cardboard, approximately one by one-and-a-half inches, wrapped in plastic
inside of James' coat pocket. When confronted, James admitted to McDermott
the folded cardboard contained Suboxone. McDermott confiscated the package
and placed James in restraints.
Id. McDermott gave the
package to another
officer who placed it in the evidence storage locker located in the central control
room. James was placed in prehearing disciplinary housing.
On March 26, 2018, James was charged with *.203 – possession of a
prohibited substance. He received notice of the charge the same day.
Id. A disciplinary hearing
was scheduled for March 27, 2019, but was postponed to
accommodate James' request for video footage of the incident. 1 The disciplinary
hearing was held the following day.
On March 28, 2019, James plead not guilty. The hearing officer heard
McDermott's testimony and considered several DOC documents related to the
incident, including a report prepared by the Special Investigations Division. The
report indicated that an investigator had assessed the contraband and concluded,
based on its shape, color, and markings, that it was "Suboxone sublingual film
8mg." The report indicates that the contraband was discovered in the prison's
mailroom, not on James's person.
James alleged that he was not wearing a coat while in the visitation hall, and
the video would prove McDermott's account was unreliable. The hearing officer
found that the video showed inmates hanging their coats up outside the visitation
hall, so fact that James was not wearing one while inside was of no consequence.
Id. A-3920-18T2 3 James,
with the assistance of a counsel substitute, testified in his defense.
He denied possessing a prohibited substance and asserted that he never made the
alleged admission to McDermott. Notably, James chose not to cross-examine
McDermott or call any witnesses to challenge the reports. James and his counsel
substitute were shown the adjudication report and a list of evidence the hearing
officer relied upon. At the conclusion of the hearing, James was found guilty.
James administratively appealed the decision of the hearing officer. On
March 29, 2019, a DOC Assistant Superintendent upheld the finding of guilt and
On appeal, James presents the following issues for our review:
THE APPELLANT SUBMITS THAT THE
HEARING OFFICER ERRED BY ALLOWING
EVIDENCE INTO THE HEARING WITH A
FINDING OF GUILT WHICH HAD NOT BEEN
VERIFIED AS DRUGS BY LABORATORY
REPORTS AND/OR TESTING [CONSISTENT]
WITH DEPARTMENT OF CORRECTIONS
POLICY AND PROCEDURE
THE EVIDENCE RELIED ON BY THE HEARING
OFFICER WAS NOT BASED ON
SUBSTANSTIAL CREDIBLE EVIDENCE AND
THAT APPELLANT MUST BE APPRISED OF
MATERIAL IN ORDER TO PREPARE A PROPER
DEFENSE THUS SHIFTING THE BURDEN OF
PROOF ON THE APPELLANT
Our review of an administrative agency's decision is limited. See In re
208 N.J. 182
, 194 (2011). We "afford a 'strong presumption of
reasonableness' to an administrative agency's exercise of its statutorily delegated
responsibilities." Lavezzi v. State,
219 N.J. 163
, 171 (2014) (quoting City of
Newark v. Nat. Res. Council, Dep't of Env't Prot.,
82 N.J. 530
, 539 (1980)).
Thus, "[w]ithout a 'clear showing' that it is arbitrary, capricious, or
unreasonable, or that it lacks fair support in the record, an administrati ve
agency's final . . . decision should be sustained, regardless of whether a
reviewing court would have reached a different conclusion in the first instance."
Circus Liquors, Inc. v. Governing Body of Middletown Twp.,
199 N.J. 1
(2009) (quoting In re Herrmann,
192 N.J. 19
, 27 (2007)).
An inmate is not accorded the full panoply of rights in a disciplinary
proceeding afforded a defendant in a criminal prosecution. Avant v. Clifford,
67 N.J. 496
, 522 (1975). Instead, prisoners are entitled to: (1) written notice of
the charges at least twenty-four hours prior to the hearing; (2) an impartial
tribunal; (3) a limited right to call witnesses and present documentary evidence;
(4) a limited right to confront and cross-examine adverse witnesses at a hearing;
(5) a right to a written statement of the evidence relied upon and the reasons for
the sanctions imposed; and (6) where the charges are complex, the assistance of
a counsel substitute.
Id. at 525-33;
accord Jacobs v. Stephens,
139 N.J. 212
(1995); McDonald v. Pinchak,
139 N.J. 188
, 192 (1995).
N.J.A.C. 10A:4-9.15(a) requires a finding of guilt at a disciplinary hearing
to be supported by substantial evidence. "'Substantial evidence' means 'such
evidence as a reasonable mind might accept as adequate to support a
conclusion.'" Figueroa v. New Jersey Dep't of Corr.,
414 N.J. Super. 186
92 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co.,
35 N.J. 358
We are satisfied James received all the procedural protections afforded to
inmates during disciplinary proceedings. Timely notice was given of the
charges against him, and he received the assistance of a counsel substitute during
the hearing. James was allowed to testify in his defense, had the opportunity to
cross-examine adverse witnesses, and his request for video footage of the
incident was accommodated. He also received a description of the evidence the
hearing officer relied upon in making its determination.
We reject James's argument that there was insufficient evidence to sustain
the finding of guilt. The evidence the hearing officer relied upon included
McDermott's testimony and the incident report he prepared immediately after
discovery of the contraband. His testimony and report indicate James had
concealed a small piece of folded cardboard and admitted to possessing
Suboxone. That admission is corroborated by the Special Investigations
Division report identifying the contraband as Suboxone.
We note the discrepancy in the report stating the contraband was found in
the mailroom, not on James's person. However, even if the weight of the report
is discredited by the apparent oversight, the hearing officer was entitled to reject
James's claims that he never possessed, or admitted to possessing Suboxone.
McDermott's testimony and report provided substantial evidence that the inmate
possessed a prohibited substance. James was given the opportunity to challenge
that evidence through cross-examination of McDermott, or by presenting his
own witnesses, but did neither.
James's claim that the respondent should have had the contraband tested
by the state lab is equally without merit. Unlike prohibited act *.204 – use of a
prohibited substance, state lab testing is not required to prove the chemical
make-up of a prohibited substance related to a *.203 charge. See Blanchard v.
New Jersey Dep't of Corr.,
461 N.J. Super. 231
, 241 (App. Div. 2019) ("[T]he
regulation is nonetheless limited to 'specimens' drawn from an inmate's body,
such as urine, blood, or saliva, and not substances the inmate actually or
Because the hearing officer's determination is supported by substantial
evidence, which includes James's admission that the contraband in question was
Soboxone, we discern no reason to disturb the DOC's finding of guilt.
To the extent we have not addressed any of James's remaining arguments,
we conclude that they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).