NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-2716-18
NEW JERSEY DEPARTMENT
Submitted March 11, 2020 – Decided February 11, 2021
Before Judges Fuentes and Haas
On appeal from the New Jersey Department of
Joseph Kelly, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Travis Michael Anderson, Deputy Attorney
General, on the brief).
The opinion of the court was delivered by
Appellant Joseph Kelly is an inmate at South Woods State Prison serving
a five-year term for possession of an unspecified dangerous substance. In this
inmate disciplinary infraction case, appellant was charged and found guilty of
committing disciplinary infraction *.203, possession of a synthetic cannabinoid.
He argues he was denied effective assistance of counsel substitute. A counsel
substitute is not a lawyer.1 There are no standards to assess the effectiveness of
a counsel substitute. Appellant has not cited to any legal authority which
permits an inmate facing disciplinary sanctions in a penal institution's
disciplinary proceeding to argue he or she is entitled to challenge the fairness of
the proceedings based on the performance of a counsel substitute.
The record shows there was sufficient evidence to support the hearing
officer's determination. A corrections officer saw appellant and another inmate
sitting on the bottom bunk of their cell and in possession of a leafy substance.
The corrections officer immediately sought the assistance of another corrections
officer and they seized a plastic baggie containing this contraband, which
substance tested positive for K2, a synthetic cannabinoid.
N.J.A.C. 10A:1-2.2 defines counsel substitute as "an individual, such as an
inmate paralegal, teacher or social worker, who represents and defends an
inmate at a disciplinary hearing proceeding that is conducted within a
correctional facility under the jurisdiction of the Department of Corrections. "
This court's authority to review a decision of a State administrative agency
is limited. In re Taylor,
158 N.J. 644
, 656 (1999). We will not disturb an
agency's adjudicatory decision unless there is evidence 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). Here, the record reflects that the Department of
Corrections presented substantial credible evidence to support the hearing
officer's finding that appellant committed disciplinary infraction *.203.
Figueroa v. N.J. Dep't of Corr.,
414 N.J. Super. 186
, 192 (App. Div. 2010); see
also N.J.A.C. 10A:4-9.15(a).