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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3273-08T45956-08T3 GARRICK KIRK, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent. ________________________________________________________________

Submitted August 10, 2010 - Decided Before Judges Lihotz and Baxter. On appeal from the New Jersey Department of Corrections. Garrick Kirk, appellant pro se. Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief). PER CURIAM This is an appeal from a June 26, 2009 final agency decision of the New Jersey Department of Corrections (DOC), in which DOC imposed disciplinary sanctions upon Garrick Kirk, then an inmate at South Woods State Prison, for committing an act prohibited by N.J.A.C. 10A:4-4.1. In particular, on June 25, 2009, the hearing officer found Kirk guilty of *.203, possession of any prohibited substance such as a drug or intoxicant not prescribed for the inmate by medical or dental staff. The hearing officer imposed a sanction of fifteen days detention, 365 days loss of commutation credits, 365 days loss of administrative segregation, permanent loss of contact visits and confiscation of the contraband.

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On appeal, Kirk maintains that the finding of guilt must be reversed because: 1) it was not based upon substantial and credible evidence in the record; 2) he was denied due process when the hearing officer denied his request for confrontation and cross-examination of witnesses and failed to document his request for same; and 3) his due process and confrontation rights were violated by the withholding of information relating to a confidential informant. We reject those contentions and affirm. I. On June 16, 2009, acting upon a confidential tip from an inmate, who alleged that Kirk was in possession of a prohibited cellular telephone, Sergeant McKishen placed Kirk in restraints and escorted him to holding cell 1005. The holding cell is described by DOC as a "dry cell," because it has no bed, sink or toilet. A "dry cell" is used when an inmate is under suspicion for having ingested or hidden contraband in his body. Kirk was placed in the Body Orifice Scanning System (BOSS) chair, which emitted a positive signal for a metallic foreign object. Further medical testing ultimately revealed that the BOSS chair was detecting not a concealed cell phone, but instead surgical pins that had earlier been inserted in Kirk's hip. Prior to Kirk's placement in holding cell 1005, Officer Spindler searched the cell and found it to be clear of any contraband. When Kirk was removed from cell 1005, Senior Corrections Officer McCoy searched the cell and found three latex balloons containing a green leafy substance, which tested positive for marijuana. Immediately after the marijuana was confiscated, Kirk was ordered to provide a urine sample. When the urine sample tested positive for the presence of THC, the active ingredient in marijuana, DOC charged Kirk with possession of a prohibited substance, *.203. Although the hearing began on June 19, 2009, it was adjourned on three occasions, first because Kirk was on close watch in a dry cell, and later to allow the hearing officer to obtain seizure of evidence reports and to determine why Kirk had been placed in a dry cell. On June 25, the hearing was concluded. The hearing officer's June 25, 2009 final adjudication report noted that Kirk defended the charge by maintaining that the marijuana was not his, but instead belonged to another inmate who had been in the dry cell before he was placed there and that the corrections officers failed to search the cell after the other inmate was removed and before Kirk was placed there. The hearing officer's report also specifically notes that Kirk was offered the opportunity both before the hearing, and at the hearing, to present witnesses but chose not to do so; and that when offered the opportunity to cross-examine adverse witnesses, he "declined" to do so. After considering the written reports of the

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corrections officers who searched dry cell 1005, discovered the marijuana and ordered the urine sample, the hearing officer found Kirk guilty of possession of marijuana. After an associate prison administrator affirmed the finding of guilt on June 26, 2009, Kirk filed the present appeal. II. Our scope of review is a narrow one, and Kirk's contentions are reviewed in accordance with that standard. We must affirm unless the agency's decision was arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We turn to the first of the three arguments advanced by Kirk, namely that the finding of guilt is not supported by credible evidence in the record. Kirk also argues that the hearing officer incorrectly relied upon the fact that the BOSS chair emitted a positive signal even though the BOSS chair does not test for the presence of marijuana. Viewed as a whole, the record demonstrates that Officer Spindler searched Kirk's holding cell, number 1005, prior to placing Kirk in the cell and found it clear of any contraband. Officer McCoy searched the cell after Kirk was removed and found the three latex balloons containing marijuana. Finally, Kirk's urine sample also tested positive for marijuana. The hearing officer found the reports of the corrections officers credible and we have been presented with no meritorious basis to reject that credibility determination. Consequently, the evidence presented at the hearing amply supports the hearing officer's conclusion that Kirk was guilty of the charged offense. As to Kirk's claim about the BOSS chair, the hearing officer's report merely notes that after the BOSS chair emitted the positive result, Kirk was placed in the dry cell under constant watch. The hearing officer did not, contrary to Kirk's arguments on appeal, use the BOSS chair as evidence to support a conclusion that Kirk was guilty of possession of marijuana. Also, the positive signal was explained by the surgical pins in Kirk's hip. We thus reject the claim Kirk advances in Point I. III. In Point II, Kirk maintains that he was denied due process when the hearing officer denied his request for confrontation and cross-examination of witnesses and failed to properly document his request for the exercise of those rights. This argument is entirely meritless as the hearing officer's report specifically notes: 15. Name of adverse witness: Offered opportunity to confront adverse witness. [Inmate]

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declined DHO offer. Immediately below that entry, Kirk and his counsel substitute signed their names after the text which stated: Inmate or counsel substitute acknowledges that the information in lines 1-15 accurately reflects what took place at the inmate disciplinary hearing. Thus, contrary to Kirk's assertions, the record clearly demonstrates that he was offered the opportunity to confront adverse witnesses but declined to do so. We thus reject the claim he advances in Point II. IV. In Point III, Kirk argues that his due process and confrontation rights were violated when DOC refused to provide him with a summary of the information derived from the confidential informant concerning his alleged possession of a cell phone. Kirk did not raise this argument before the hearing officer or in his administrative appeal. With exceptions not pertinent here, a litigant is prohibited from raising on appeal issues that could have been, but were not, presented before the factfinder. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We therefore decline to consider this claim.

Affirmed. Kirk is presently incarcerated at East Jersey State Prison. (continued) (continued) 7 A-5956-08T3 August 19, 2010 0x01 graphic

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