SEAN MALCOLM 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NOT FOR PUBLICATION WITHOUT THE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-3419-18

SEAN MALCOLM,

Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

Defendant.
___________________________

Submitted May 13, 2020 – Decided July 2, 2021

Before Judges Fuentes and Enright.

On appeal from the New Jersey Department of
Corrections.

Sean Malcolm, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Shuster, Assistant Attorney
General, of counsel; Niccole L. Sandora, Deputy
Attorney General, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.
 Appellant Sean Malcolm is currently incarcerated at New Jersey State

Prison serving a thirty-year term of imprisonment for murder, N.J.S.A. 2C:11-

3a(1), with an eighty-five percent period of parole ineligibility under the No

Early Release Act, N.J.S.A. 2C:43-7.2, as well as related lesser included

offenses. He appeals from the decision of a Hearing Officer who found he

committed a disciplinary infraction, to wit prohibited act *.203, possession of

any prohibited substance. Appellant was originally charged with prohibited act

*.503, making an intoxicant. However, based on insufficient evidence to

support the accusation that appellant actually made the intoxicant, the Hearing

Officer amended the charge to *.203. Corrections Officer Sergeant Bezek

served appellant with this amended charge on February 6, 2019.

The Corrections Officer who searched appellant's cell on February 5,

2019, found a bottle containing a liquid with a strong odor of alcohol. Sergeant

Bezek averred that he sniffed the bottle found in appellant's possession and its

content smelled like an alcoholic beverage "based on his training and

experience." Appellant claimed the content of the bottle was only juice. He

pleaded not guilty and at his request was granted counsel substitute. He admitted

possession of the bottle, but denied it contained any intoxicants.

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 Counsel substitute argued that the Department of Corrections (DOC) did

not present proof that there was bread or sugar found in the bottle and Sergeant

Bezek did not have the kind of "specialized training" to permit him to

differentiate, based on smell alone, between spoiled fruit juice and fruit juice

modified to create an alcoholic beverage. The Hearing Officer reviewed the

evidence and considered the arguments presented and found the content of the

staff reports were sufficient to find appellant guilty of disciplinary infraction

*.203.

The Hearing Officer imposed a sanction of 120 days of administrative

segregation, 120 days loss of commutation time, permanent loss of contact

visits, 365 days of urine monitoring, referral for a mental health evaluation, and

confiscation of the prohibited item. Appellant administratively appealed the

Hearing Officer's decision and on March 5, 2019, an associate administrator

upheld the guilty finding, as well as the sanctions imposed. This appeal

followed.

Based on the standard of proof required, we reverse. "A finding of guilt

at a disciplinary hearing shall be based upon substantial evidence that the inmate

has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). "Substantial

evidence" means "such evidence as a reasonable mind might accept as adequate

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to support a conclusion." Figueroa v. New Jersey Dep't of Corr., 414 N.J. Super.

186, 192 (App. Div. 2010) (quoting In re Public Serv. Electric & Gas Co., 35

N.J. 358, 376 (1961)). An appellate court may reverse a disciplinary conviction

that is "not supported by substantial credible evidence in the record as a whole ."

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

Although a lay person may opine about whether a person is under the

influence of alcohol, Sergeant Bezek testified the liquid was an alcoholic

beverage based on his specialized training. In Blanchard v. New Jersey Dep't

of Corr., we held that the DOC "acted arbitrarily, capriciously or unreasonably

in denying a confirmatory laboratory test of a powder, seized from the inmate,

which a field test indicated contained cocaine." 461 N.J. Super. 231, 235 (App.

Div. 2019). The situation here is analogous. The content of the bottle may have

had an odor associated with an alcoholic beverage, but this alone does not

constitute substantial evidence.

This court has made clear that,

"although the determination of an administrative
agency is entitled to deference, our appellate obligation
requires more than a perfunctory review." Blackwell v.
Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div.
2002). Accordingly, our function is not to merely
rubberstamp an agency's decision, Williams v. Dep't of
Corr., 330 N.J. Super. 197, 204 (App. Div. 2000);
rather, our function is "to engage in 'a careful and

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 principled consideration of the agency record and
findings.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau
of Sec., 64 N.J. 85, 93 (1973)).

[Figueroa, 414 N.J. Super. at 191].

Here, the Hearing Officer held that appellant "did not provide any

evidence to discredit staff reports. As such, [the Hearing Officer] will rely on

written reports and clarification received to support the charge as amended."

The Hearing Officer improperly shifted the burden of proof to appellant.

Without some basis to assess the reliability of the specialized training received

by Sergeant Bezek, the Hearing Officer's findings are not supported by

substantial evidence.

Reversed.

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