JOSHUA DALRYMPLE VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

J
                                NOT FOR PUBLICATION WITHOUT THE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-1681-19

JOSHUA DALRYMPLE,
a/k/a HOMER,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                   Submitted April 12, 2021 – Decided May 12, 2021

                   Before Judges Hoffman and Suter.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Joshua Dalrymple, appellant pro se.

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

PER CURIAM
      Joshua Dalrymple, an inmate at South Woods State Prison (SWSP),

appeals the September 12, 2019 final decision of the Department of Corrections

(Department), imposing disciplinary sanctions for violation of prohibited act

*.803/*.203 — attempting to possess a prohibited substance contrary to N.J.A.C.

10A:4-4.1(a). We reverse the finding of guilt and disciplinary sanctions.

      On September 10, 2019, an investigator for the special investigation

division at SWSP confiscated a letter addressed to appellant after observing an

orange-colored substance underneath one of the two postage stamps. Based on

his training and experience, the investigator believed this to be Suboxone, which

is a controlled substance. The letter was correctly addressed and included

appellant's inmate number.      The return address was from a person who

previously visited appellant. The letter contained photographs and a letter.

Appellant complied with the request for a urine test, and it was negative.

      Appellant was charged with institutional infraction *.803/*.203 for

attempting to possess or introduce "any prohibited substances such as drugs,

intoxicants or related paraphernalia not prescribed for the inmate by the medical

or dental staff." See N.J.A.C. 10A:4-4.1(a)(2)(xv); see also N.J.A.C. 10A:4-

4.1(a)(2)(xxxvii). He pleaded not guilty to the charge, claiming he had "no idea

what's going on."


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      A disciplinary hearing officer conducted a hearing on September 12, 2019.

Appellant had the assistance of counsel substitute. Appellant contended he had

"no knowledge of these drugs . . . ." However, the hearing officer found

appellant's "defense was not supported," noting that the letter had a return

address from a person known to visit appellant and included a friendly note and

photographs. The hearing officer relied on the investigative report to conclude

that the stamp was concealing Suboxone. The hearing officer found that a

"[r]easonable person would believe he knew [the] letter was coming," based on

the location of the alleged drugs under the stamp and concluded that the

"[e]vidence supports the charge." He noted that appellant did not argue he was

being set up. Appellant was sanctioned 180 administrative segregation days,

ninety days loss of commutation time, ten days loss of recreation privileges, 365

days of urine monitoring and loss of contact visits.

      Appellant administratively appealed the decision. He denied knowledge

about the alleged drugs, arguing he should not be held accountable if someone

wanted to surprise him with a prohibited gift. The Assistant Superintendent

upheld the decision by the hearing officer on September 17, 2019, finding the

Department was in compliance with procedural safeguards and the sanction

"[was] appropriate to the charge." Appellant appealed the final agency decision.


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                                        3
      On appeal, appellant argues that:

            I. THE DISCIPLINARY HEARING OFFICER'S
            (DHO)    GUILTY    FINDING   AND     THE
            ADMINISTRATOR'S UPHOLDING OF THAT
            FINDING [WAS] ARBITRARY, CAPRICIOUS, AND
            UNREASONABLE.

                  A. THE PLAINTIFF'S RIGHT TO DUE
                  PROCESS WAS VIOLATED WHEN THE
                  DEPARTMENT FAILED TO SEND THE
                  ALLEGED CDS TO A LABORATORY
                  FOR TESTING.

                  B. THE DHO'S GUILTY FINDING WAS
                  NOT BASED ON SUBSTANTIAL
                  CREDIBLE    EVIDENCE    IN  THE
                  RECORD.

                  C.     THE   HEARING   OFFICER
                  ERRONEOUSLY     PLACED     THE
                  BURDEN OF PROOF ON THE
                  PLAINTIFF TO PROVE THAT HE DID
                  NOT   COMMIT    THE   ALLEGED
                  PROHIBITED ACT.

      Appellant argues the Department's decision was arbitrary, capricious and

unreasonable because it was not based on substantial, credible evidence. He

claims his right to due process was violated because the substance under the

stamp was not laboratory or field tested as required by Department regulations.

Appellant contends the Department did not meet its burden of proof and

attempted to shift the burden to him.


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                                          4
      In this appeal from an agency action, our review is limited. We ordinarily

decline to reverse the decision of an administrative agency unless it is "arbitrary,

capricious or unreasonable or it is not supported by substantial credible evidence

in the record as a whole." In re Taylor, 

158 N.J. 644

, 657 (1999) (quoting Henry

v. Rahway State Prison, 

81 N.J. 571

, 580 (1980)). A finding that an inmate

committed a disciplinary offense must be "supported by substantial evidence,"

Avant v. Clifford, 

67 N.J. 496

, 530 (1975), which means, "such evidence as a

reasonable mind might accept as adequate to support a conclusion." Figueroa

v. N.J. Dep't of Corr., 

414 N.J. Super. 186

, 192 (App. Div. 2010) (quoting In re

Pub. Serv. Elec. & Gas Co., 

35 N.J. 358

, 377 (1961) (citation omitted)); see

N.J.A.C. 10A:4-9.15(a). When such evidence exists, a court may not substitute

its own judgment for the agency's even though the court may have reached a

different result. See 

Henry, 81 N.J. at 579-80

.

      An inmate who commits an enumerated prohibited act "shall be subject to

disciplinary action and a sanction that is imposed by a Disciplinary Hearing

Officer or Adjustment Committee . . . ." N.J.A.C. 10A:4-4.1(a). Appellant was

charged with *.803/*.203, for attempting to possess or introduce a prohibited

substance. The term "possession" is not defined in the relevant regulations. See

N.J.A.C. 10A:1-2.2; see also N.J.A.C. 10A:4-1.3. Therefore, in Figueroa, we


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                                         5
applied the definition of possession used in the Criminal Code.             There,

"[p]ossession . . . signifies a knowing, intentional control of a designated thing,

accompanied by a knowledge of its character." 

Figueroa, 414 N.J. Super. at 192

(quoting State v. Pena, 

178 N.J. 297

, 305 (2004)). In State v. Morrison, the

Court distinguished actual possession from constructive possession. 

188 N.J. 2

,

14 (2006).

             A person has actual possession of "an object when he
             has physical or manual control of it." [State v. Spivey,
             

179 N.J. 229

, 236 (2004)] (citing State v. Brown, 

80
N.J. 587

, 597 (1979)). Alternatively, a person has
             constructive possession of "an object when, although he
             lacks 'physical or manual control,' the circumstances
             permit a reasonable inference that he has knowledge of
             its presence, and intends and has the capacity to
             exercise physical control or dominion over it during a
             span of time."

Id. at 237

(quoting State v. Schmidt, 

110
N.J. 258

, 270 (1988)).

             [Ibid.]

      In Figueroa, the inmate was found guilty of the same prohibited acts as

appellant. 414 N.J. Super. at 190

. Figueroa asked a corrections officer if he

"could obtain a pack of Bugler tobacco from [another inmate] . . . ."

Id. at 189.

The corrections officer obtained it for Figueroa but inspected it before giving it

to the inmate, finding that one of the cigarettes in the pack was filled with

marijuana. Figueroa then would not submit to a drug test. We reversed the


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                                        6
guilty finding because the infraction was not based on substantial evidence. The

hearing officer's findings did not support that Figueroa knew or was aware that

the cigarette pack handed to the officer contained marijuana.

Id. at 193.

      Here, the Department argues there was substantial credible evidence to

support the guilty finding because there was Suboxone under the stamp, the

sender visited appellant in the past, and the envelope was correctly addressed

with appellant's prison number. The Department argues the location of the drugs

under the stamp showed knowledge by appellant to look in that area.

      Our review of the record does not show the substantial, credible evidence

necessary to support the Department's findings. Just as in Figueroa, appellant

did not have actual possession of the alleged drugs. And here, similar to

Figueroa, there was no evidence appellant was aware there was anything under

the stamp. He denied knowledge of it. 1 The sender may have been familiar to

appellant, but there was no evidence the sender sent drugs to appellant or others

in the past. There was no evidence this was part of a series of letters that

distributed drugs. The Department did not contend appellant received drugs



1
   There is a portion of the record that is illegible. In paragraph fourteen
("statement of inmate") of the adjudication section of the disciplinary charge, it
states, "I am being" and then the next word is not legible to us. We presume
appellant was communicating something about a defense.
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                                        7
through the mail in the past. He took a urine test after the envelope was

confiscated and tested negative. There was no evidence appellant requested

drugs or that he expected them.        Therefore, the record did not support a

reasonable inference that appellant had knowledge of the drugs or intended to

exercise physical control over them.

      The record also did not support the Department's conclusion the letter

contained drugs. The relevant regulation provides, "[s]uspected contraband

narcotics or dangerous drugs may be forwarded to an approved laboratory for

chemical analysis or, where appropriate, field tested at the correctional facility."

N.J.A.C. 10A:3-6.5(b). In this case, the substance was not field tested or sent

to a laboratory; the Department relied on the investigator's training and

experience to conclude this was Suboxone. However, there was nothing in the

record which addressed that experience or training. Although appellant argues

the regulation required testing, we have no need to address this — and do not —

because here there simply was no proof about training or experience. The

Department did not shift the burden as appellant alleges; the record did not show

that the Department met its burden.

      Reversed.




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