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Portillo v. Dep't of Corrections


April 22, 2008


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

Per curiam.


Submitted April 14, 2008

Before Judges Lintner and Graves.

Petitioner, Fabio Portillo, an inmate currently incarcerated in Southern State Correctional Facility, appeals from a determination of the Department of Corrections (Department) finding him guilty of committing prohibited act .401 (participating in an unauthorized meeting), N.J.A.C. 10A:4-4.1(a).*fn1

On Saturday, June 6, 2007, Senior Corrections Officer Mansell observed petitioner with a group of six other inmates in the Compound B Unit 12 courtyard demonstrating being handcuffed. Mansell reported the meeting to Sergeant Calisti at Central Control. Normal activities in Compound B were suspended and a response team in full riot gear was sent to the location. An investigation conducted by Sergeant Flickinger revealed that three of the inmates admitted that they were discussing and attempting to show how to free oneself from handcuffs. Although petitioner and three other inmates conceded they were in the area, they stated they were participating in other appropriate conduct.

A hearing was convened on June 8, 2007, before Hearing Officer Kathy Ireland. Petitioner pled not guilty and received assistance from counsel substitute. Relying on the reports of Calisti and Mansell, and the three inmate statements, Ireland found petitioner guilty of .401. She imposed ten days' detention with credit for time served, sixty days' loss of commutation credit, and ninety days' administrative segregation, suspended for sixty days, thus relieving petitioner from serving the sanction if he remained free of charges for sixty days.

Petitioner filed an administrative appeal, contending that he should be given leniency from the sanctions imposed because he had a very good disciplinary record and had positively adjusted to the prison facility. After considering petitioner's appeal, Associate Administrator Greg Bartkowski upheld the guilty finding but reduced the sanction from ten days' to seven days' detention. The remaining sanctions were left unchanged.

Petitioner contends, for the first time on appeal, that:

(1) Central Control did not access its video tape; (2) the prison officers discriminate against all Spanish-speaking inmates; and (3) he received ineffective assistance of substitute counsel because the assigned paralegal knew nothing about the incident. Those arguments were neither argued nor presented at the initial hearing or on administrative appeal. We, therefore, will not consider them here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); State v. Marain, 322 N.J. Super. 444, 447 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000); Kaneh v. Sunshine Biscuits, 321 N.J. Super. 507, 511-12 (App. Div. 1999).

Moreover, we are satisfied from our review of the record that the decision of the Department is supported by substantial credible evidence in the administrative record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Petitioner was accorded the appropriate safeguards and protections during the procedure in accordance with Avant v. Clifford, 67 N.J. 496, 522-30 (1975).


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