RANDY JOHNSON VS. NEW JERSEY DEPARTMENT OF CORRECTIONS

• Court: New Jersey Superior Court Appellate Division
• Decided: February 6, 2020
• Docket: A-1045-18T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 APPELLATE DIVISION DOCKET NO. A-1045-18T2

RANDY JOHNSON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Defendant. ___________________________

Submitted January 29, 2020 – Decided February 6, 2020

Before Judges Haas and Enright.

On appeal from the New Jersey Department of Corrections.

Randy Johnson, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for respondent (Donna Sue Arons, Assistant Attorney General, of counsel; Nicholas A. Falcone, Deputy Attorney General, on the brief).

PER CURIAM Appellant Randy Johnson appeals from the October 10, 2018 final agency

decision of the New Jersey Department of Corrections (DOC) that he committed

prohibited act *.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. N.J.A.C. 10A:4-4.1(a). We affirm.

DOC developed the following facts at appellant's disciplinary hearing.

On May 22, 2017, while incarcerated at Northern State Prison, corrections

officers found him in a shower in his underwear. Appellant was slurring his

speech, disoriented, and unable to stand on his own. Medical staff provided

emergency medical treatment to appellant and administered a Narcan shot.

Corrections officers searched the shower where appellant was found and

discovered a pair of pants. In the right pocket of the pants, they discovered four

folded pieces of thick paper, which contained suspected heroin. Corrections

officers also found glasses and a radio in the shower area that belonged to

appellant. No other inmate was in the shower area at the time. The suspected

contraband was logged and photographed. Subsequent testing confirmed the

suspected contraband was fentanyl.

Appellant's hearing on his disciplinary charge was postponed three times

in order to secure lab results of the substance recovered during the incident, to

A-1045-18T2 2 clarify the identification of appellant's pants and to allow him to confront and

question the corrections officer involved in the incident.

The hearing proceeded in June 2018. Appellant pled not guilty and was

afforded the assistance of counsel substitute. During the hearing, the corrections

officer who discovered appellant in the shower on the date of the incident

testified that appellant was found in his underwear, his pants were nearby,

nobody else was in the shower area at that time, and inmates are not permitted

to walk to the shower from their cells wearing only their underwear.

The hearing officer found appellant guilty of prohibited act *.203 and

imposed the following penalties: permanent loss of contact visits; 365 days'

urine monitoring; 125 days' administrative segregation; 125 days' loss of

commutation time; 20 days' loss of recreation privileges; and 10 days' loss of

telephone privileges. Appellant administratively appealed this decision and the

DOC upheld the hearing officer's decision, triggering the instant appeal.

Appellant argues there was no proof that the items found in the shower on

the day of the incident belonged to him, that the investigation process was

flawed, that he was not permitted to view the physical evidence pertinent to the

investigation and that his counsel substitute was ineffective.

A-1045-18T2 3 Having considered appellant's arguments in light of the record and

controlling law, we find them to be without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following

brief remarks.

Our scope of review of an agency decision is limited. In re Stallworth,

208 N.J. 182, 194 (2011); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186,

190 (App. Div. 2010). Reviewing courts presume the validity of the

"administrative agency's exercise of its statutorily delegated responsibilities."

Lavezzi v. State, 219 N.J. 163, 171 (2014). "We defer to an agency decision

and do not reverse unless it is arbitrary, capricious[,] or unreasonable or not

supported by substantial credible evidence in the record." Jenkins v. N.J. Dep't

of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). But, an agency's

"interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, the DOC's decision is

supported by sufficient credible evidence on the record as a whole, Rule 2:11-

3(e)(1)(D), and is not arbitrary, capricious, or unreasonable. Henry v. Rahway

State Prison, 81 N.J. 571, 580 (1980).

A-1045-18T2 4 Further, appellant was afforded the process due an inmate in disciplinary

proceedings. See McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Avant v.

Clifford, 67 N.J. 496, 522-33 (1975). His claim that he was denied due process

because his counsel substitute failed to provide adequate assistance is

particularly unavailing. Pursuant to N.J.A.C. 10A:4-9.12(a), "[w]hen an inmate

has been charged with an asterisk offense, the inmate shall be afforded the right

to request representation by a counsel substitute." Our Supreme Court has held

that requiring inmates to be represented by attorneys "would be wholly

incompatible with New Jersey institutional needs and capacities and . . .

unessential to protection of the inmate's rights." Avant, 67 N.J. at 537. Rather,

the prison need only "choose a sufficiently competent staff member or inmate to

provide assistance" or allow the inmate to choose "a consenting staff member or

inmate." Id. at 529. Inmate paralegals are not attorneys and receive limited

training. To hold counsel substitutes to the standards of legally educated,

licensed, and practicing attorneys would be unrealistic. Moreover, appellant has

not demonstrated his counsel substitute was incompetent or failed to fulfill his

limited role.

Affirmed.

A-1045-18T2 5