JAMAR FUNCHESS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARMENT OF CORRECTIONS) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3230-17T2
JAMAR FUNCHESS,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________
Submitted May 7, 2019 – Decided May 20, 2019
Before Judges Hoffman and Enright.
On appeal from the New Jersey Department of
Corrections.
Jamar Funchess, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Suzanne M. Davies,
Deputy Attorney General, on the brief).
PER CURIAM
Jamar Funchess, an inmate currently housed at Southern State
Correctional Facility, appeals from the December 28, 2017 final agency decision
of the Department of Corrections (DOC) which found he committed two
prohibited acts. Based on our review of the record in light of the applicable law,
we affirm.
The record reflects that, on December 24, 2017, while Funchess was
serving a five-year prison sentence at Mid-State Correctional Facility, a senior
corrections officer subjected him to a random pat search. Funchess was in a
corridor during an "inbound lunch mess movement" when the search was
conducted. During the pat down, an altered razor was discovered in Funchess'
left sock. He was told to face the wall and initially complied but then acted
aggressively. Another officer called in a code to signal a disturbance was in
progress. The incident halted the lunch movement for approximately twenty
minutes.
Funchess was served with disciplinary charges on December 24, 2017,
alleging he committed prohibited acts *.202, "possession or introduction of a
weapon such as, but not limited to, a sharpened instrument, knife or
unauthorized tool," and *.306, "conduct which disrupts or interferes with the
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security or orderly running of the correctional facility." N.J.A.C. 10A:4-4.1(a).1
Funchess pleaded not guilty and was assigned counsel substitute per his request.
His charges were referred to a hearing officer for further action and a
disciplinary hearing was scheduled for December 27, 2017. The hearing was
postponed to the next day so the hearing officer could obtain additional
information, including the video of the incident, which had been requested by
Funchess. The record indicates that after the hearing officer attempted to
procure the video, she was advised it did not exist.
On December 28, 2017, the hearing officer heard testimony and reviewed
the evidence, including reports of the incident and a photo of the altered razor.
Funchess provided a statement at the hearing, denying he committed the
prohibited acts. He also claimed he was the subject of retaliation due to a prior
complaint he filed against a corrections officer. Funchess further contended that
during the incident, he went through two metal detectors which were not set off
because he did not have a weapon on him. As to the *.306 charge, he claimed
he was not up against the wall during the incident. Funchess declined the
opportunity to confront and cross-examine adverse witnesses. See N.J.A.C.
1
Funchess also was charged with *.803/*.002, attempting to assault any person,
but was found not guilty of same, so this charge is not discussed in this opinion.
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10A:4-9.14(a). However, at his request, statements from other witnesses to the
incident were reviewed. The hearing officer found these other witness
statements were vague and did not assist Funchess.
At the conclusion of the disciplinary hearing, the hearing officer found
Funchess committed prohibited acts *.202 and *.306. Funchess was sanctioned
to 240 days' loss of commutation time and 240 days' administrative segregation
for the *.202 charge. For the *.306 charge, he was sanctioned to 120 days' l oss
of commutation time and 120 days' administrative segregation, concurrent to the
*.202 charge. Funchess pursued an internal administrative appeal within the
DOC and on December 28, 2017, the DOC upheld the hearing officer's
determination. This appeal followed.
On appeal, Funchess asserts the decision of the hearing officer should be
vacated. He insists the decision is not based upon substantial credible evidence
and that he was denied due process, in part, because he was not able to review
the video recording of the incident. We disagree.
Our standard of review of agency determinations is limited. See In re
Stallworth, 208 N.J. 182, 194 (2011); Brady v. Bd. of Review, 152 N.J. 197, 210
(1997); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div.
2010). We will not reverse the decision of an administrative agency unless it is
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"arbitrary, capricious, or unreasonable, or [] not supported by substantial
credible evidence in the record as a whole." Stallworth, 208 N.J. at 194
(alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-
80 (1980)). Nonetheless, we must "engage in a 'careful and principled
consideration of the agency record and findings.'" Williams v. Dep't of Corr.,
330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v.
Bureau of Sec., Div. of Consumer Affairs, 64 N.J. 85, 93 (1973)). Here,
although information was supplied by defendant and inmate witnesses, the
hearing officer had the prerogative as the fact-finder to adopt as more persuasive
the version of events that inculpated appellant. The finding is supported by
substantial credible evidence.
Moreover, we discern no due process or procedural violations. "Prison
disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply." Jenkins
v. Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v. McDonnell, 418 U.S.
539, 556 (1974)). An inmate's more limited procedural rights are codified in a
comprehensive set of DOC regulations, N.J.A.C. 10A:4-9.1 to -9.28. The
regulations "strike the proper balance between the security concerns of the
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prison, the need for swift and fair discipline, and the due-process rights of the
inmates." Williams, 330 N.J. Super. at 203.
Funchess was offered and granted a counsel substitute. He also had the
right to call witnesses and elected not to cross-examine witnesses. His claim
that his due process rights were violated because he was denied the opportunity
to review the video recording of his actions is unpersuasive. In fact, this
argument is undermined by the record, which reflects the hearing officer
attempted to procure the video but it did not exist. All other arguments raised
by appellant lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(D) and (E).
Affirmed.
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