DAVID SPENCER VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (DEPARTMENT OF CORRECTIONS) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4946-16T3
DAVID SPENCER,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted December 12, 2018 – Decided February 5, 2019
Before Judges Vernoia and Moynihan.
On appeal from the New Jersey Department of
Corrections.
David Spencer, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Kevin J. Dronson,
Deputy Attorney General, on the brief).
PER CURIAM
Appellant David Spencer appeals from a New Jersey Department of
Corrections (DOC) final agency decision upholding the disciplinary hearing
officer's (DHO) decision finding appellant guilty of committing prohibited acts
under N.J.A.C. 10A:4-4.1(a): .009A for "misuse, possession, distribution, sale,
or intent to distribute or sell, an electronic communication device . . . that is not
authorized for use or detention by an inmate who is assigned to a [r]esidential
[c]ommunity [r]elease [p]rogram," N.J.A.C. 10A:4-4.1(a)(3)(i); *.207,
prohibiting "possession of money or currency (in excess of $50.00) unless
specifically authorized," N.J.A.C. 10A:4-4.1(a)(2)(xviii); .257 for "violating a
condition of any [r]esidential [c]ommunity [p]rogram and or [r]esidential
[c]ommunity [r]elease [p]rogram," N.J.A.C. 10A:4-4.1(a)(5)(iv); and .305
prohibiting "lying[] [or] providing a false statement to a staff member," N.J.A.C.
10A:4-4.1(a)(4)(iv).
The record evidence relied upon by the DHO confirms that the charges
arose from an incident at a community release program facility where appellant
was assigned. After appellant returned to the facility from a work detail, the
shift supervisor conducted a pat-down search and felt what he believed to be
contraband concealed in appellant's groin area. Security-wand passes of the area
were positive. Appellant denied possessing any contraband. He refused five
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directives to enter a holding cell and left the area where the search was
conducted. DOC officers later removed appellant from the facility and returned
him to East Jersey State Prison. There, he reported that the supervisor touched
his genitals during the search. That allegation triggered Prison Rape Elimination
Act1 protocol, part of which entailed a review of appellant's telephone
communications. During the review, a DOC investigator discovered a telephone
communication made by appellant the day after the incident at the facility during
which he discussed both $300 and a cell phone. As to the former, he asked if
the other party received the cash. As to the latter, he told the other party to keep
the phone, described the supervisor's attempt to search him, discussed how he
denied possession of any contraband and admitted he passed his "shit off" when
he left the area, stating, "all this time I had it in my [b]riefs."
Appellant contends the DHO's findings were not based on substantial
evidence that he committed the prohibited acts, N.J.A.C. 10A:4-9.15, because:
the reports relied upon by the DHO "may have been false or altered"; it was "not
right [or] legal" for the DHO to rely "only on the evidence being presented by
staff and not the violator"; and the physical evidence appellant was alleged to
have possessed – a cell phone and $300 – was not immediately seized and was
1
See 34 U.S.C. §§ 30301 to 30309.
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not produced at the hearing. Appellant also argues the DHO "made a pre-
disposed opinion regarding [his] guilt" as shown by the summary of evidence
she wrote in the Adjudication of Disciplinary Charge and that the charges
against him were inaccurate and motivated only by his complaint that the
supervisor of the community release facility "touched him inappropri ately"
during a pat-down search. We are unpersuaded by any of appellant's arguments
and affirm.
The Legislature vested the DOC with broad discretion in matters
concerning facilities management, including offender discipline. Russo v. N.J.
Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999). In our limited role
reviewing a prison disciplinary decision, we determine the hearing officer's
decision was based on substantial evidence in the record in compliance with
N.J.A.C. 10A:4-9.15(a), Figueroa v. Dep't of Corr., 414 N.J. Super. 186, 190-91
(App. Div. 2010), "'[s]ubstantial evidence' [being] 'such evidence as a
reasonable mind might accept as adequate to support a conclusion,'" id. at 192
(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).
The record indicates appellant and his counsel-substitute listened to the
recorded telephone call. The DHO, after a hearing at which appellant was
provided counsel-substitute, found: the reports regarding the supervisor's pat-
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down search and wanding, together with her review of the telephone call made
by appellant, proved the 009A and *.207 charges; although appellant submitted
to the pat-down search and wanding, the reports of appellant's refusal to enter
the holding cell and leaving the area after the searches indicated a concealed
item proved the .257 violation; and the reports of his denial of possession of
contraband, together with the evidence supporting that he possessed it, proved
the .305 charge.
The DHO considered and rejected appellant's explanations and defenses:
(1) possession of the phone could not be proved without the immediate seizure
of the phone and production of same at the hearing; (2) the possession of money
charge could not be proved by mere discussion of it during a telephone call; (3)
he allowed the supervisor's pat-down search, thus complying with the program's
rules; and (4) he did not lie to staff because he never made the allegation that
the supervisor inappropriately touched him or, as alternatively argued by
counsel-substitute, he did not deliberately intend to deceive staff. The totality
of the evidence presented, including the reports and appellant's recorded
telephone communications, is substantial evidence supporting the DHO's
findings that appellant committed the charged prohibited acts. N.J.A.C. 10A:4-
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9.14(a); Figueroa, 414 N.J. Super. at 191-92. We also note, appellant's actions
prevented the immediate seizure of the contraband.
We determine appellant's arguments regarding the DHO's prejudgment of
the case and that the false charges were motivated by his complaint about the
supervisor's touching of appellant's genitals to be without sufficient merit to
warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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