REGINALD VENABLE VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

R
                                NOT FOR PUBLICATION WITHOUT THE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-3477-18

REGINALD VENABLE, a/k/a
REGGI MONEY, and
REGINALD MONEY,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                            Submitted March 8, 2021 – Decided May 14, 2021

                            Before Judges Mayer and Susswein.

                            On appeal from the New Jersey Department of
                            Corrections.

                            Reginald Venable, appellant pro se.

                            Gurbir S. Grewal, Attorney General, attorney for
                            respondent (Jane C. Schuster, Assistant Attorney
                            General, of counsel; Stephanie R. Dugger, Deputy
                            Attorney General, on the brief).

PER CURIAM
      Appellant, Reginald Venable, is an inmate at East Jersey State Prison. He

appeals from the February 26, 2019 final agency decision by the Department of

Corrections (Department) finding him guilty of the asterisk offense 1 of

possession of materials associated with a security threat group (STG). See

N.J.A.C. 10A:4-4.1 *011. Venable contends the material was of a religious

nature related to the Nation of Islam and that he is not affiliated with a gang.

After carefully reviewing the record, the arguments of the parties, and the

applicable legal principles, we affirm the Department's decision.

       Venable is currently serving a fifty-year prison sentence with a twenty-

year period of parole ineligibility for his conviction for first-degree robbery and

unlawful possession of a handgun. The disciplinary hearing was conducted on

February 25, 2019, at which Venable requested and was granted the assistance

of substitute counsel. Venable pled guilty to the charged offense but requested

consideration. Venable did not testify, produce evidence, or avail himself of the

opportunity afforded to him and his substitute counsel to cross -examine the

Department's witness.


1
  Under the Department's regulations on inmate discipline, N.J.A.C. 10A:4-4.1,
"[a]sterisk offenses" are prohibited acts considered to be the most serious
violations, resulting in the most severe sanctions.


                                                                             A-3477-18
                                        2
      According to the evidence presented by the Department at the disciplinary

hearing, on February 19, 2019, Corrections Officer Madore discovered written

materials in a bin under Venable's bed. Officer Madore testified based on his

training and experience that the confiscated material included lessons from the

STG known as the Five Percenters.2

      After hearing the Department's testimony, the Hearing Officer found

Venable guilty and imposed 100 days of administrative segregation, twenty days

of loss of recreation privileges, and ten days of loss of commutation time.

Venable immediately appealed the decision. On February 26, 2019, an associate

administrator upheld the Hearing Officer's decision.

      Venable raises the following arguments for our consideration:

            POINT I

            THE FINDING OF GUILT IN THIS CASE WAS NOT
            BASED UPON SUBSTANTIAL EVIDENCE IN THE
            RECORD AND CANNOT BE SUSTAINED. (Not
            Raised Below).


            POINT II

            THE  NEW    JERSEY    DEPARTMENT   OF
            CORRECTIONS HAS FAILED TO DEMONSTRATE

2
  In Hetsberger v. Dep't of Corr., 

395 N.J. Super. 548

(2007), we had occasion
to discuss this STG, which is also known as the "Five Percent Nation" and "the
Nation."
                                                                         A-3477-18
                                       3
            HOW THE DOCUMENTS FOUND IN VENABLE'S
            CELL WERE STG RELATED MATERIAL. (Not
            Raised Below).

            POINT III

            APPELLANT WAS DENIED DUE PROCESS OF
            LAW BY THE FAILURE OF THE PRISON
            ADMINISTRATION TO WHOM THIS CASE WAS
            FIRST APPEALED TO CONSIDER THE GROUND
            FOR APPEAL URGED BY APPELLANT. (Not
            Raised Below).

            A. THE ESSENTIAL ELEMENTS OF DUE
               PROCESS ARE NOTICE, HEARING, AN
               OPPORTUNITY FOR REVIEW, AND ABIDING
               BY ONE'S OWN STATED RULES AND
               REGULATIONS. (Not Raised Below).

            B. BY FAILING TO ADEQUATELY CONSIDER
               APPELLANT'S      APPEAL    NOTICE, THE
               OPPORTUNITY FOR REAL REVIEW WAS
               DENIED APPELLANT AT THE INSTITUTIONAL
               LEVEL. (Not Raised Below).

      In Avant v. Clifford, the New Jersey Court explained the procedural

protections afforded to inmates charged with institutional infractions. 

67 N.J.

496

(1975). Inmates facing serious discipline must be provided notice of the

charge, a reasonable period to prepare a defense, a hearing before a neutral

hearing officer or adjustment committee, the right to present witnesses and

evidence, and the right to confront and cross-examine Department witnesses or

to obtain the hearing body's reasoning for denying such confrontation and cross-

                                                                          A-3477-18
                                       4
examination.

Id. at 525–33;

see also McDonald v. Pinchak, 

139 N.J. 188

(1995);

Jacobs v. Stephens, 

139 N.J. 212

(1995). As the Supreme Court noted in

McDonald, the regulatory framework for adjudicating charges "strike[s] 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.” 139 N.J. at 202

.

      The scope of our review is narrow. As a general matter, we will disturb

an agency's adjudicatory decision only upon a finding 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) (citing Campbell v. Dep't of Civil Service, 

39 N.J. 556

,

562 (1963)). In determining whether an agency action is arbitrary, capricious,

or unreasonable, a reviewing court must examine:

            (1) [W]hether the agency's action violates express or
            implied legislative policies, that is, did the agency
            follow the law; (2) whether the record contains
            substantial evidence to support the findings on which
            the agency based its action; and (3) whether in applying
            the legislative policies to the facts, the agency clearly
            erred in reaching a conclusion that could not reasonably
            have been made on a showing of the relevant factors.

            [In re Carter, 

191 N.J. 474

, 482 (2007) (quoting Mazza
            v. Bd. of Trs., 

143 N.J. 22

, 25 (1995)).]




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                                        5
      Our deference to the adjudicatory decisions made by the Department is

especially appropriate in view of its important mission to safeguard prison safety

and security. See Blanchard v. N.J. Dep't of Corr., 

461 N.J. Super. 231

, 238–39

(App. Div. 2019) (cautioning that a reviewing court should "not substitute its

own judgment for the agency's"). In Blanchard, we emphasized that "prisons

are dangerous places, and the courts must afford appropriate deference and

flexibility to administrators trying to manage this volatile environment."

Id. at

238

(quoting Russo v. N.J. Dep't of Corr., 

324 N.J. Super. 576

, 584 (App. Div.

1999)).

      Furthermore, we are deferential to an agency's expertise. See Murray v.

State Health Benefits Comm'n, 

337 N.J. Super. 435

, 442 (App. Div. 2001)

("[W]here there is substantial evidence in the record to support more than one

regulatory conclusion, it is the agency's choice which governs.") (quotation

marks omitted) (quoting In re Vineland Chemical Co., 

243 N.J. Super. 285

, 307

(App. Div. 1990)). In this instance, we recognize that the Department not only

has a compelling interest in preventing criminal street gangs and other STGs

from recruiting or indoctrinating inmates, but also has developed expertise in

identifying those organizations and the materials that are associated with them.




                                                                            A-3477-18
                                        6
      In an appeal from a final decision of the Department in a prisoner

disciplinary matter, we consider whether there is substantial evidence in the

record to support the Department's decision that the inmate committed the

prohibited act. 

Blanchard, 461 N.J. Super. at 237

–38 (citing 

Henry, 81 N.J. at

579

–80 (1980)). Substantial evidence has been defined alternately as "such

evidence as a reasonable mind might accept as adequate to support a

conclusion," and "evidence furnishing a reasonable basis for the agency's

action."

Ibid. (quoting Figueroa v.

N.J. Dep't of Corr., 

414 N.J. Super. 186

, 192,

(App. Div. 2010)) (citations omitted); see also N.J.A.C. 10A:4-9.15(a) ("A

finding of guilt at a disciplinary hearing shall be based upon substantial evidence

that the inmate has committed a prohibited act."). However, we note that "our

review is not 'perfunctory,' nor is 'our function . . . merely to rubberstamp an

agency's decision.'"

Ibid. (quoting Figueroa, 414

N.J. Super. at 192). Rather,

"[w]e are constrained to engage in a 'careful and principled consideration of the

agency record and findings.'"

Ibid. (quoting Williams v.

Dep't of Corr., 330 N.J.

Super. 197, 204 (App. Div. 2000)).

      We are satisfied that the Department in this case presented substantial

evidence that Venable possessed the materials found under his bed, that those

materials relate to the Five Percenters, and that the Fiver Percenters is an STG.


                                                                             A-3477-18
                                        7
This evidence was sufficient to establish that Venable possessed STG materials

in violation of institutional regulations. As we have noted, Venable declined the

opportunity that was afforded to him to testify, call witnesses, produce evidence,

or cross-examine the Corrections Officer who testified for the Department.

Based on the information presented at the disciplinary hearing, the Department's

affirmance of the Hearing Officer's decision was not arbitrary, capricious, or

unreasonable.

      We also reject Venable's contention that he was denied the right to

administratively appeal the Hearing Officer's decision.      The record clearly

shows that the Associate Administrator considered and denied Venable's

administrative appeal, explaining "[i]t has been a long-established rule that STG

Material is not permitted for retention. Possession of this material jeopardizes

security."

      To the extent we have not specifically addressed them, any remaining

arguments raised by Venable in this appeal lack sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(d).

      Affirmed.




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