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Vasquez v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 31, 2008

JORGE VASQUEZ, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2008

Before Judges Wefing and Parker.

Petitioner Jorge Vasquez appeals from a final decision by the New Jersey Department of Corrections (DOC) rendered on January 9, 2007 finding him guilty of a violation of *.704, perpetrating fraud, deception and confidence games in violation of N.J.A.C. 10A:4-4.1. We affirm.

Petitioner was sentenced on September 22, 2000 to a term of thirteen-years subject to 85% parole ineligibility for armed robbery. In December 2006, the DOC became aware that inmates at Riverfront State Prison were filing fraudulent federal income tax returns and receiving refunds. Petitioner had filed income tax returns for 2003 and 2005 and received refunds in the amounts of $2,103.60 and $2,014 respectively.

The problem was that petitioner had not paid any taxes during those years because no withholding taxes were deducted from inmates' pay. Petitioner filed erroneous 1040-EZ forms and attached an IRS form 4852 as a substitute for a W-2 form. Petitioner was charged with two counts of violating *.704 for each of the fraudulent claims he filed.

In this appeal, petitioner argues:

THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE IT IS BASED ON PROCEEDINGS THAT VIOLATED APPELLANT'S DUE PROCESS RIGHTS THE HEARING OFFICER RENDERED A GUILTY FINDING WITHOUT MAKING AN INDEPENDENT DETERMINATION OF THE RELIABILITY OF THE CONFIDENTIAL INFORMANT

Petitioner maintains that he never violated any Riverfront State Prison or Department of Corrections rules because nowhere in the inmate handbook does it say that he cannot file a fraudulent tax return. This argument is so obviously lacking in merit that we will not discuss it further. R. 2:11-3(e)(1)(E).

With respect to his second argument, petitioner claims that the hearing officer "ha[d] consistently undertaken Ex Parte communications with the Special Investigation Division," and the hearing officer's determination "rest[ed] upon information outside the record which the parties have not had the opportunity to meet."

Petitioner maintains that a "template" of a tax form was presented at the hearing, and "[a]bsent . . . the precise [t]aX [f]orm that [petitioner] submitted, this template lacks credence, and was supposed to be disregarded." Obviously, the "precise" tax form was in the custody of the Internal Revenue Service [IRS] and not available to the hearing officer. Petitioner gave a statement in writing, in which he did not deny filing the tax returns. He merely claimed that it was legal to do so based upon a letter he received from the IRS stating that it is legal for inmates to file tax returns. Petitioner did not, however, present any evidence that he had paid taxes for the 2003 and 2005 tax years. The record indicates that petitioner was provided with all of the procedural due process requirements under Avant v. Clifford, 67 N.J. 496, 522 (1975). He had the opportunity to present evidence of taxes paid or withheld for the 2003 and 2005 tax years and failed to do so.

Finally, petitioner claims the identity of the confidential informant should have been revealed so the informant could have been cross-examined. There is no requirement that the identity of a confidential informant be revealed and, therefore, no merit to this argument. See State v. Milligan, 73 N.J. 373, 383-84 (1976) (no fixed rule for disclosure of a confidential informant's identity; rather, the court must balance the public interest in protecting the flow of information against the individual's right to prepare his defense); State v. Williams, 364 N.J. Super. 23, 38 (App. Div. 2003).

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . .'" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.

Affirmed.

20080331

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