                                NOT FOR PUBLICATION WITHOUT THE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-5966-17T2

SHAMEIK BYRD,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted November 6, 2019 – Decided November 22, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Shameik Byrd, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Francis A. Raso, Deputy Attorney
                    General, on the brief).

PER CURIAM
      Appellant Shameik Byrd, a New Jersey State Prison (NJSP) inmate,

appeals from a March 14, 2018 final agency decision of the Department of

Corrections (DOC), finding him guilty and imposing sanctions for committing

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, in violation of N.J.A.C. 10A:4-4.1(a)(2)(xv).1

Because the finding of guilt was based on substantial credible evidence in the

record and the disciplinary hearing comported with all due process

requirements, we affirm.

                                        I.

      We discern the following facts and procedural history from the record.

On August 26, 2017, during a routine search at Northern State Prison (NSP), a

Senior Corrections Officer (SCO) found what appeared to be a controlled

dangerous substance (CDS) wrapped inside a blue plastic glove among Byrd's

belongings underneath his top bunk. SCOs immediately transported Byrd to

pre-hearing disciplinary housing and sent the substance to the State Police

laboratory for testing.


1
  N.J.A.C. 10A:4-4.1 identifies the prohibited acts by numerical designation.
Offenses with designations "preceded by an asterisk (*) are considered the most
serious and result in the most severe sanctions . . . ." N.J.A.C. 10A:4-4.1(a).
                                                                           A-5966-17T2
                                        2
        Byrd was formally served with the aforementioned disciplinary charge on

August 28, 2017. After the charge was investigated, it was determined the

charge had merit, and the matter was referred for a hearing before a disciplinary

hearing officer (DHO). Byrd pled not guilty. The initial hearing, scheduled for

August 29, 2017, was postponed pending test results from the State Police

laboratory. In the interim, Byrd was transferred to Southern State Correctional

Facility, where he is serving the remainder of his sentence.

        The disciplinary hearing took place on March 12, 2018. At the hearing,

Byrd was provided counsel-substitute as requested but declined to make a

statement, call witnesses on his behalf, or confront any adverse witnesses. The

adjudication form states Byrd "[r]el[ied] on statement to SID," 2 but no such

statement is provided in the record. The State Police laboratory notified the new

facility the substance tested positive for heroin.

        After reviewing the reports and several photographs of the items seized

from Byrd's cell, the DHO determined Byrd was guilty of prohibited act *.203,

noting an NSP corrections officer found the heroin tucked beneath Byrd's bunk .

After considering the evidence, the DHO imposed the following sanction: fifteen




2
    Special Investigations Division.
                                                                         A-5966-17T2
                                         3
days loss of recreational privileges; 100 days of administrative segregation; 100

days loss of commutation time; and 365 days of urine monitoring.

      Through his counsel-substitute, Byrd filed an administrative appeal

seeking rescission of the DHO's findings pending a full investigation of the

common area rule. In support, Byrd argued he never possessed the contraband

at issue, which was not in a secured locker, and therefore, it must have belonged

to his cellmate at NSP. He also sought leniency.

      On March 14, 2018, the assistant superintendent of the facility upheld the

decision and imposition of sanctions. This appeal followed.

      On appeal, Byrd argues that:

            [THE] AGENCY DECISION TO UPHOLD A
            GUILTY FINDING WAS NOT SUPPORTED BY
            ANY EVIDENCE ON RECORD IN VIOLATION OF
            NEW JERSEY RULES OF EVIDENCE RULE 401.
            (Not Raised Below).

      Byrd further argues that the record lacked substantial credible evidence

for the hearing officer to impose sanctions and therefore, his due process rights

were violated.

                                       II.

      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); In


                                                                         A-5966-17T2
                                       4
re Taylor, 158 N.J. 644, 656 (1999). We will not upset the determination of an

administrative agency absent a showing that it was arbitrary, capricious, or

unreasonable; that it lacked fair support in the evidence; or that it violated

legislative policies. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)

(citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

      We have also noted that the Legislature has provided the DOC with broad

discretion in all matters regarding the administration of a prison facility,

including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324

N.J. Super. 576, 583 (App. Div. 1999). Therefore, we may not vacate an

agency's determination because of doubts as to its wisdom or because the record

may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J.

Super. 484, 489-90 (App. Div. 1985).

      However, "although the determination of an administrative agency is

entitled to deference, our appellate obligation requires more than a perfunctory

review." Figueroa, 414 N.J. Super. at 191 (quoting Blackwell v. Dep't of Corr.,

348 N.J. Super. 117, 123 (App. Div. 2002)). We are not "relegated to a mere

rubber-stamp of agency action[,]" but rather we must "engage in careful and

principled consideration of the agency record and findings." Williams v. Dep't




                                                                          A-5966-17T2
                                        5
of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (internal quotations and

citation omitted).

         Byrd contends that the SCO's decision not to question or drug test Byrd's

cellmate sheds reasonable doubt concerning ownership of the CDS given his

cellmate's access to his belongings. Moreover, Byrd claims the DOC did not

prove with certainty that the CDS was not planted in his cell with his personal

items.

         Byrd's assertions are belied by the record. The finding of guilt was based

on substantial credible evidence and the disciplinary hearing comported with a ll

due process requirements.

         A prison disciplinary proceeding "is not part of a criminal prosecution and

thus the full panoply of rights due a defendant in such a proceeding does not

apply." Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v.

Brewer, 408 U.S. 471, 480 (1972)). In Avant, the New Jersey Supreme Court

prescribed limited due process protections due to prisoners prior to their

subjection to discipline. Id. at 519, n.21.

         These protections include written notice of the charges and timely

adjudication; a hearing before an impartial tribunal; representation, if requested,




                                                                            A-5966-17T2
                                          6
by counsel-substitute; a limited ability to call witnesses and confront adverse

witnesses; and a limited ability to present documentary evidence. Id. at 525-30.

        Here, the record reflects that Byrd was afforded all due process

protections and his ability to defend himself was not impaired by the SCO not

testing or questioning Byrd's cellmate.      We have held "[w]here there is

substantial evidence in the record to support more than one regulatory

conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem.

Co., 243 N.J. Super. 285, 307 (App. Div. 1990) (De Vitis, 202 N.J. Super. at

491).

        In the present case, the DHO reviewed an Inmate Contraband Seizure

Report; several Special Custody Reports prepared in August 2017; a Use of

Force Report; a March 2018 Preliminary Incident Report; the State Police

Laboratory Drug Analysis; and photographs of the items removed from Byrd's

cell. The DHO confirmed that the item was identified as a CDS.

        Based upon our review of the record, we are convinced the charge against

Byrd was supported by substantial credible evidence, and the DOC's

determination was not arbitrary, capricious, or unreasonable.       We further

conclude that Byrd received all due process protections afforded him.

        Affirmed.


                                                                         A-5966-17T2
                                        7
