WYDELL WASHINGTON 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NOT FOR PUBLICATION WITHOUT THE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-3600-18T2

WYDELL WASHINGTON,

Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

Respondent.
__________________________

Submitted May 26, 2020 – Decided June 9, 2020

Before Judges Sabatino and Natali.

On appeal from the New Jersey Department of
Corrections.

Wydell Washington, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Beonica McClanahan, Deputy
Attorney General, on the brief).

PER CURIAM
 Appellant Wydell Washington, an inmate confined at Northern State

Prison in Trenton, 1 appeals from a January 24, 2019 final administrative decision

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

prohibited act *.202, "possession or introduction of a weapon, such as . . . a

sharpened instrument, knife, or unauthorized tool," contrary to N.J.A.C. 10A:4-

4.1(a).2 Appellant was sanctioned to 181 days of administrative segregation,

180 days' loss of commutation credits, and fifteen days' loss of recreation

privileges. The DOC also confiscated the weapon seized from his cell. We

affirm.

According to incident reports, on January 23, 2019, Officer Sloan3 was

ordered to conduct a search of appellant's cell. Hidden underneath commissary

1
At the time of the incident that led to the administrative charges, appellant
was incarcerated at Mid-State Correctional Facility in Wrightstown.
2
Although it does not affect the decision in this matter, effective January 3,
2017, the DOC reclassified its disciplinary sanctions of asterisk offenses (most
serious) and non-asterisk offenses (less serious) to the use of a five-level format
and rebalanced the schedule of sanctions and the severity of offense scale.
N.J.A.C. 10A:4-4.1(a); N.J.A.C. 10A:4-5.1; N.J.A.C. 10A:9-2.13. We refer in
this opinion to prohibited act *.202 to conform to the record.
3
We refer to Officer Sloan by his surname, intending no disrespect, as the
record does not reflect his first name.
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2
items and papers, in his wall locker, Sloan discovered a razor fashioned into a

weapon.

Appellant denied the charges and claimed that the weapon did not belong

to him. He further alleged that his locker was searched earlier that day without

incident, and then when his locker was later searched it was conducted by an

unknown "[non]-tier officer" and "that [is] when [the] razor was found."

Prior to the disciplinary hearing, appellant requested and was granted the

assistance of counsel substitute and, as noted, pled not guilty. He submitted a

written statement denying the charges.

A Disciplinary Hearing Officer (DHO) considered defendant's statement

and other evidence, as well as the reports prepared by Sloan, and found appellant

guilty of the *.202 charge. The DHO noted that "[appellant] is responsible for

contraband found in his locker to secure the security and running of [the]

facility." On the adjudication report, appellant's counsel substitute signed and

indicated that the information in the form "accurately reflect[ed] what took place

at the inmate disciplinary hearing," including that appellant was "asked . . . [and]

. . . declined" the right to call witnesses on his behalf and confront adverse

witnesses.

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 Appellant administratively appealed the disciplinary decision and claimed

that he "was set up by the officer that searched [his] locker." As he did before

the DHO, he stated that "his housing officer had searched [his] area a few

minutes before with negative results" and he could not have placed the weapon

in his footlocker because he "was buffing the floors" when the weapon was

seized. On January 24, 2019, the DOC Assistant Superintendent, after reviewing

the "charge, investigation, adjudication, and sanction," upheld the DHO's

determination based on the "evidence presented." The DOC Assistant

Superintendent specifically noted that contrary to appellant's unsupported

allegation, "the last recorded search of [his] locker was on January 15, 2019."

Appellant raises three primary arguments on appeal. First, he argues that

the DHO committed error in not permitting him the "right" to have the

confiscated weapon fingerprinted. He states that he "adamantly" denies

possessing the razor, no reports evidenced appellant ever wielding the weapon ,

and "fingerprint analysis would have changed the outcome." Second, he

maintains the investigation was deficient which denied him a fair hearing and

due process. He claims that the DHO committed error in not permitting him

access to video footage, despite his request, which would have established his

innocence of the charge. Finally, appellant contends his counsel substitute was

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ineffective because he "had no knowledge of the infraction and was ill-

prepared." He specifically asserts that his counsel substitute was informed of

his representation the day of the hearing and only sought a postponement

because appellant advised him to make the request.

"Our role in reviewing the decision of an administrative agency is

limited." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div.

2010). "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). "'Substantial evidence' means 'such evidence as a reasonable

mind might accept as adequate to support a conclusion.'" Figueroa, 414 N.J.

Super. at 192 (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376

(1961)).

When reviewing a determination of the DOC in a matter involving

prisoner discipline, we engage in a "careful and principled consideration of the

agency record and findings." Williams v. Dep't of Corr., 330 N.J. Super. 197,

204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of

Consumer Affairs of Dep't of Law & Pub. Safety, 64 N.J. 85, 93 (1973)). We

consider not only whether there is substantial evidence that the inmate

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committed the prohibited act, but also whether, in making its decision, the DOC

followed regulations adopted to afford inmates procedural due process. See

McDonald v. Pinchak, 139 N.J. 188, 194-96 (1995).

"Prison disciplinary proceedings are not part of a criminal prosecution,

and the full panoply of rights due a defendant in such proceedings does not

apply." Jenkins v. Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v.

McDonnell, 418 U.S. 539, 556 (1974)). However, the inmate's more limited

procedural rights, initially set forth in Avant v. Clifford, 67 N.J. 496, 525-46

(1975), are codified in a comprehensive set of NJDOC regulations. N.J.A.C.

10A:4-9.1 to 9.28.

Those rights include a right to a fair tribunal, N.J.A.C. 10A:4-9.15, a

limited right to call witnesses and present documentary evidence, N.J.A.C.

10A:4-9.13, a limited right to confront and cross-examine adverse witnesses,

N.J.A.C. 10A:4-9.14, a right to a written statement of the evidence relied upon

and the reasons for the sanctions imposed, N.J.A.C. 10A:4-9.24, and, in certain

circumstances, the assistance of counsel-substitute, N.J.A.C. 10A:4-9.12. The

regulations "strike 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." Williams, 330 N.J. Super. at 203 (citing McDonald, 139 N.J. at 202).

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6
 Applying these principles, we are satisfied that there was substantial

credible evidence in the record to support the finding of guilt on the *.202

charge, and that appellant received all the process he was due, despite his

assertions to the contrary. In this regard, appellant has not demonstrated that

the DOC's decision was arbitrary, capricious, or unreasonable. See Bowden v.

Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993) (holding that

"[t]he burden of showing the agency's action was arbitrary, unreasonable[,] or

capricious rests upon the appellant").

Here, the contemporaneous reports prepared by Sloan presented at the

disciplinary hearing and relied upon by the DHO and Assistant Superintendent

established that appellant possessed a weapon in his footlocker. Other than

appellant's own denials and unsupported claims that he was set up by some

unnamed officer or individual who assumedly planted the weapon in his

footlocker, nothing in the record reasonably challenges the reliability of Sloan's

statements memorialized in his report. We also note that appellant's claim that

his locker was searched "a few minutes before with negative results" was

specifically rejected by the Assistant Superintendent who noted that the search

previous to that which occurred on January 23, 2019 took place on January 15,

2019.

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 We reject appellant's claim that that a fingerprint analysis would have

proven he did not possess the razor. First, there is no support in the record that

appellant ever made such a request. Second, a fingerprint analysis is not

required as evidence in a DOC disciplinary hearing and N.J.A.C. 10A:4-9.5(a)-

(e), relied upon by appellant, does not require such an analysis. That regulation

simply addresses the requirements of a DOC investigation which was fully

complied with here. Finally, the absence of appellant's fingerprint on the

weapon would not necessarily establish his innocence of possessing a weapon.

Again, we note, appellant declined his opportunity to confront or call witnesses.

We reach a similar conclusion with respect to appellant's claim that the

DHO committed error when it precluded him access to undescribed video

footage. Initially we note that the adjudication report does not reflect any

request by appellant or his counsel substitute for video footage. His

administrative appeal also fails to mention any request for video footage or

fingerprint analysis. Had such a request been made, there is no corroborative

evidence that the footage would have revealed exculpatory evidence to

challenge the unambiguous statements relied upon by the DHO. No

documentary evidence supported appellant's claim of an earlier search and he

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failed to challenge Sloan's statements in his reports by way of confrontation or

by seeking to call witnesses.

We also reject appellant's final point on appeal that the charges should be

reversed and his sanctions dismissed because his counsel substitute was

ineffective. Although the right to counsel substitute in prison disciplinary

hearings is not equivalent to the constitutional right to formal or retained counsel

in non-institutional proceedings, Avant, 67 N.J. at 536-37, appointment of

counsel substitute is among the procedural safeguards to which inmates are

entitled when charged with asterisk offenses. An inmate who receives assistance

from a counsel substitute who is not "sufficiently competent" has been

effectively denied the due process protections established by the applicable

regulations. Id. at 529.

Appellant, however, never claimed ineffective assistance of counsel

substitute in his administrative appeal or otherwise challenged the conduct of

the hearing. Further, his factual assertions in his merits brief explaining

counsel's ineffectiveness are unsupported. As such, we need not consider the

claim on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)

("[A]ppellate courts will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a presentation is

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available 'unless the questions so raised go to the jurisdiction of the trial court

or concern matters of great public interest.'") (quoting Reynolds Offset Co., Inc.

v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)); see also Hill v. N.J. Dep't

of Corr. Comm'r William Fauver, 342 N.J. Super. 273, 293 (App. Div. 2001).

Even if we were to consider this contention, we are satisfied that appellant

was not prejudiced by any deficiency such that there exists a "reasonable

probability that, but for [counsel substitute's] unprofessional errors, the result of

the proceeding would have been different." Strickland v. Washington, 466 U.S.

668, 694 (1984). Appellant presents nothing in the form of certifications from

prospective witnesses, for example, or any other evidence to support his claims

from which we could conclude that had different counsel substitute been

assigned, the outcome of the proceedings would have been different. In

addition, appellant provides no contemporaneous records to suggest, contrary to

the explicit acknowledgment on the disciplinary adjudication forms, that he

sought to call or confront witnesses.

We find no basis to reject the hearing officer's factual finding that the

weapon was found in appellant's footlocker. Because the DHO's guilty finding

and the imposed sanctions were supported by substantial credible evidence in

the record and appellant was afforded sufficient due process, the determination

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that appellant committed prohibited act *.202 was not arbitrary, capricious, or

unreasonable.

To the extent we have not specifically addressed any of appellant's

arguments, it is because we consider them sufficiently without merit to require

discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

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