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Perez v. Dep't of Corrections

November 7, 2007

JOSE PEREZ, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2007

Before Judges Parrillo and Sabatino.

This is a prison disciplinary appeal. Jose Perez, an inmate currently confined at South Woods State Prison, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited acts *.708, refusal to submit to a search; *.013, unauthorized physical contact; and *.306, conduct which disrupts the orderly running of the institution, in violation of N.J.A.C. 10A:4-4.1(a). On appeal, Perez argues that he was denied due process because the hearing officer failed to review a camera tape and because Perez was refused a polygraph examination. Perez also contends that the finding that he refused to submit to a search lacks a factual basis.*fn1 We are satisfied that the final agency decision should be affirmed, as appellant was afforded all the process due, and the findings of guilt are all supported by substantial credible evidence.

On May 2, 2006, while incarcerated at East Jersey State Prison, Perez was observed in the prison yard snorting what appeared to be drugs. Consequently, Senior Corrections Officer (SCO) R. Service attempted to strip search Perez in the "Tie Too" area of the prison. During the search, as Perez removed his left sock, a folded and taped piece of paper fell to the floor. SCO Service attempted to pick up the paper, but Perez pushed him away, picked up the piece of paper and swallowed it. Perez then refused numerous direct orders from Service to spit out the piece of paper, thus preventing Service from inspecting the paper. As a result of Perez's actions, the prison riot bell was activated, which caused a corresponding delay in the prison yard movement. Based on his conduct, Perez was charged with committing prohibited acts *.002, "assaulting any person," *.306 and *.708.

The *.002 charge was subsequently modified to an .013 charge, "unauthorized physical contact." Perez pled guilty to the *.708 charge, not guilty to the .013 charge, and entered no plea to the *.306 charge. As to the former charge, Perez acknowledged that he put something in his mouth, and his counsel substitute further explained that "[h]e couldn't comply after they grabbed and choked him. He complied up to that point. He did put something in his mouth." On the .013 charge, Perez denied that he touched SCO Service. His counsel substitute reiterated this claim and maintained that Service choked Perez until he was unconscious. Perez did not make a statement as to the *.306 charge, and counsel substitute merely argued that any sanctions imposed on this charge be combined with those imposed on the others.

In adjudicating Perez guilty of the *.708 charge, the hearing officer concluded:

Perez changed not guilty plea to guilty to Refusing to Submit to a Search[,] admitting "I put something in my mouth." Reports indicate[d that] during [a] strip frisk of I/M Perez, Perez dropped contraband[,] pushed SCO Service out of the way and swallowed [the contraband]. I/M [Perez] was ordered to spit it out and aggressively refused and would not allow [corrections officers] to handcuff him. Staff reports are clear [that] I/M did not comply with the search once I/M dropped what appeared to be contraband. I/M plea[,] statements [and] reports used to support charge.

The hearing officer recommended sanctions of 10 days' Detention, 90 days' Administrative Segregation, 60 days' loss of commutation time, 90 days' loss of recreation privileges, and permanent loss of contact visits.

Finding Perez guilty of the .013 charge, the hearing officer stated:

Perez denies guilt to [charge of] unauthorized physical contact. Per SCO Service[,] I/M Perez pushed SCO away in order to pick up contraband I/M [Perez] dropped during strip search. Perez stated[,] "I never touched the [officer]." Paralegal stated[,] "he never put his hands on him." 5-5-06 hearing postponed for confrontation with SCO Service.

Confrontation hearing conducted 5-8-06 and SCO Service confirmed he was 'pushed' by I/M Perez. 'Push' was witnessed by SCO Alvarez. Rely on confrontation hearing and staff reports to support [a finding that] I/M Perez did push SCO Service which is unauthorized physical contact.

On this charge, the hearing officer recommended sanctions of 15 days' Detention, 90 days' Administrative Segregation and ...


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