REGINALD VENABLE VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

NOT FOR PUBLICATION WITHOUT THE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-3477-18
REGINALD VENABLE, a/k/a
REGGI MONEY, and
REGINALD MONEY,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted March 8, 2021 – Decided May 14, 2021
Before Judges Mayer and Susswein.
On appeal from the New Jersey Department of
Corrections.
Reginald Venable, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Stephanie R. Dugger, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant, Reginald Venable, is an inmate at East Jersey State Prison. He
appeals from the February 26, 2019 final agency decision by the Department of
Corrections (Department) finding him guilty of the asterisk offense 1 of
possession of materials associated with a security threat group (STG). See
N.J.A.C. 10A:4-4.1 *011. Venable contends the material was of a religious
nature related to the Nation of Islam and that he is not affiliated with a gang.
After carefully reviewing the record, the arguments of the parties, and the
applicable legal principles, we affirm the Department's decision.
Venable is currently serving a fifty-year prison sentence with a twenty-
year period of parole ineligibility for his conviction for first-degree robbery and
unlawful possession of a handgun. The disciplinary hearing was conducted on
February 25, 2019, at which Venable requested and was granted the assistance
of substitute counsel. Venable pled guilty to the charged offense but requested
consideration. Venable did not testify, produce evidence, or avail himself of the
opportunity afforded to him and his substitute counsel to cross -examine the
Department's witness.
1
Under the Department's regulations on inmate discipline, N.J.A.C. 10A:4-4.1,
"[a]sterisk offenses" are prohibited acts considered to be the most serious
violations, resulting in the most severe sanctions.
A-3477-18
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According to the evidence presented by the Department at the disciplinary
hearing, on February 19, 2019, Corrections Officer Madore discovered written
materials in a bin under Venable's bed. Officer Madore testified based on his
training and experience that the confiscated material included lessons from the
STG known as the Five Percenters.2
After hearing the Department's testimony, the Hearing Officer found
Venable guilty and imposed 100 days of administrative segregation, twenty days
of loss of recreation privileges, and ten days of loss of commutation time.
Venable immediately appealed the decision. On February 26, 2019, an associate
administrator upheld the Hearing Officer's decision.
Venable raises the following arguments for our consideration:
POINT I
THE FINDING OF GUILT IN THIS CASE WAS NOT
BASED UPON SUBSTANTIAL EVIDENCE IN THE
RECORD AND CANNOT BE SUSTAINED. (Not
Raised Below).
POINT II
THE NEW JERSEY DEPARTMENT OF
CORRECTIONS HAS FAILED TO DEMONSTRATE
2
In Hetsberger v. Dep't of Corr., 395 N.J. Super. 548 (2007), we had occasion
to discuss this STG, which is also known as the "Five Percent Nation" and "the
Nation."
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HOW THE DOCUMENTS FOUND IN VENABLE'S
CELL WERE STG RELATED MATERIAL. (Not
Raised Below).
POINT III
APPELLANT WAS DENIED DUE PROCESS OF
LAW BY THE FAILURE OF THE PRISON
ADMINISTRATION TO WHOM THIS CASE WAS
FIRST APPEALED TO CONSIDER THE GROUND
FOR APPEAL URGED BY APPELLANT. (Not
Raised Below).
A. THE ESSENTIAL ELEMENTS OF DUE
PROCESS ARE NOTICE, HEARING, AN
OPPORTUNITY FOR REVIEW, AND ABIDING
BY ONE'S OWN STATED RULES AND
REGULATIONS. (Not Raised Below).
B. BY FAILING TO ADEQUATELY CONSIDER
APPELLANT'S APPEAL NOTICE, THE
OPPORTUNITY FOR REAL REVIEW WAS
DENIED APPELLANT AT THE INSTITUTIONAL
LEVEL. (Not Raised Below).
In Avant v. Clifford, the New Jersey Court explained the procedural
protections afforded to inmates charged with institutional infractions. 67 N.J.
496 (1975). Inmates facing serious discipline must be provided notice of the
charge, a reasonable period to prepare a defense, a hearing before a neutral
hearing officer or adjustment committee, the right to present witnesses and
evidence, and the right to confront and cross-examine Department witnesses or
to obtain the hearing body's reasoning for denying such confrontation and cross-
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examination. Id. at 525–33; see also McDonald v. Pinchak, 139 N.J. 188 (1995);
Jacobs v. Stephens, 139 N.J. 212 (1995). As the Supreme Court noted in
McDonald, the regulatory framework for adjudicating charges "strike[s] the
proper balance between the security concerns of the prison, the need for swift
and fair discipline, and the due process rights of the inmates." 139 N.J. at 202.
The scope of our review is narrow. As a general matter, we will disturb
an agency's adjudicatory decision only upon a finding that the decision is
"arbitrary, capricious or unreasonable," or is unsupported "by substantial
credible evidence in the record as a whole." Henry v. Rahway State Prison, 81
N.J. 571, 579–80 (1980) (citing Campbell v. Dep't of Civil Service, 39 N.J. 556,
562 (1963)). In determining whether an agency action is arbitrary, capricious,
or unreasonable, a reviewing court must examine:
(1) [W]hether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza
v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
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Our deference to the adjudicatory decisions made by the Department is
especially appropriate in view of its important mission to safeguard prison safety
and security. See Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231, 238–39
(App. Div. 2019) (cautioning that a reviewing court should "not substitute its
own judgment for the agency's"). In Blanchard, we emphasized that "prisons
are dangerous places, and the courts must afford appropriate deference and
flexibility to administrators trying to manage this volatile environment." Id. at
238 (quoting Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div.
1999)).
Furthermore, we are deferential to an agency's expertise. See Murray v.
State Health Benefits Comm'n, 337 N.J. Super. 435, 442 (App. Div. 2001)
("[W]here there is substantial evidence in the record to support more than one
regulatory conclusion, it is the agency's choice which governs.") (quotation
marks omitted) (quoting In re Vineland Chemical Co., 243 N.J. Super. 285, 307
(App. Div. 1990)). In this instance, we recognize that the Department not only
has a compelling interest in preventing criminal street gangs and other STGs
from recruiting or indoctrinating inmates, but also has developed expertise in
identifying those organizations and the materials that are associated with them.
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In an appeal from a final decision of the Department in a prisoner
disciplinary matter, we consider whether there is substantial evidence in the
record to support the Department's decision that the inmate committed the
prohibited act. Blanchard, 461 N.J. Super. at 237–38 (citing Henry, 81 N.J. at579–80 (1980)). Substantial evidence has been defined alternately as "such
evidence as a reasonable mind might accept as adequate to support a
conclusion," and "evidence furnishing a reasonable basis for the agency's
action." Ibid. (quoting Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192,
(App. Div. 2010)) (citations omitted); see also N.J.A.C. 10A:4-9.15(a) ("A
finding of guilt at a disciplinary hearing shall be based upon substantial evidence
that the inmate has committed a prohibited act."). However, we note that "our
review is not 'perfunctory,' nor is 'our function . . . merely to rubberstamp an
agency's decision.'" Ibid. (quoting Figueroa, 414 N.J. Super. at 192). Rather,
"[w]e are constrained to engage in a 'careful and principled consideration of the
agency record and findings.'" Ibid. (quoting Williams v. Dep't of Corr., 330 N.J.
Super. 197, 204 (App. Div. 2000)).
We are satisfied that the Department in this case presented substantial
evidence that Venable possessed the materials found under his bed, that those
materials relate to the Five Percenters, and that the Fiver Percenters is an STG.
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This evidence was sufficient to establish that Venable possessed STG materials
in violation of institutional regulations. As we have noted, Venable declined the
opportunity that was afforded to him to testify, call witnesses, produce evidence,
or cross-examine the Corrections Officer who testified for the Department.
Based on the information presented at the disciplinary hearing, the Department's
affirmance of the Hearing Officer's decision was not arbitrary, capricious, or
unreasonable.
We also reject Venable's contention that he was denied the right to
administratively appeal the Hearing Officer's decision. The record clearly
shows that the Associate Administrator considered and denied Venable's
administrative appeal, explaining "[i]t has been a long-established rule that STG
Material is not permitted for retention. Possession of this material jeopardizes
security."
To the extent we have not specifically addressed them, any remaining
arguments raised by Venable in this appeal lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(d).
Affirmed.
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