April 23, 2008
ROBERTO RODRIGUEZ, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2008
Before Judges Skillman and Yannotti.
Roberto Rodriguez, an inmate incarcerated at Bayside State Prison in Leesburg, New Jersey, appeals from a final determination of the Department of Corrections which found that he committed certain prohibited acts and imposed disciplinary sanctions. For the reasons that follow, we affirm.
On February 6, 2007, while searching appellant, Senior Corrections Officer (SCO) William Cross found four pieces of thick duct tape, approximately twenty inches long, attached to the inside sleeve of appellant's coat. In the search, SCO Cross also noted that the stitching on the inside of appellant's coat had been removed to create concealed pockets in the garment.
Appellant was charged with "possession of anything not authorized for retention or receipt by an inmate or not issued to [the inmate] through regular correctional facility channels [,]" a prohibited act under N.J.A.C. 10A:4-4.1(a), .210. Appellant also was charged with "destroying, altering, or damaging government property, or the property of another person," which is prohibited by N.J.A.C. 10A:4-4.1(a), .152.
Sergeant J. Gale investigated the charges. Appellant denied that he altered his coat. He said that the coat had been given to him in that condition. Appellant also asserted that he had no knowledge of the duct tape and said that the tape must have been placed in his jacket by someone else. Sergeant Gale found the charges had merit. He noted on his investigation report that the duct tape could be used as a handle for weapons, to cover holes in a wall, or to conceal contraband under beds or counters. Sergeant Gale referred the charges for a hearing.
According to the adjudication report, appellant did not ask for the assistance of counsel substitute, and he did not ask to call any witnesses. He was offered the opportunity to confront adverse witnesses but he declined the offer. The hearing officer considered SCO Cross's disciplinary reports, photos of the evidence, appellant's explanation, his "job change" form, and his disciplinary record.
The hearing officer found that the charges had been proven. The hearing officer downgraded the .152 charge to an on-the-spot-correction (OTSC), and then combined the OTSC with the .210 charge for the purpose of imposing sanctions.*fn1 The hearing officer imposed the following sanctions: ten days of detention, the loss of sixty days of commutation time, referral to the classification committee for a job change, and confiscation of the duct tape. She noted that appellant has a prior disciplinary record that includes at least five prior serious infractions.
She also noted that appellant's coat had been altered to create hidden pockets that could be used to hide contraband or weapons.
Appellant filed an administrative appeal from the hearing officer's decision. By decision dated February 13, 2007, the associate administrator of the prison upheld the hearing officer's findings of guilt and the imposition of disciplinary sanctions. This appeal followed.
Appellant argues that the hearing officer's decision was not supported by the evidence. He also contends that his right to due process and fundamental fairness was violated because the finding of guilt on the disciplinary charges was based in part on his prior institutional record. Having thoroughly reviewed the record, we are convinced that these arguments are entirely without merit.
The standard of review that applies in this matter is well-established. "In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). When reviewing a determination of the Department of Corrections in a prisoner disciplinary matter, we consider whether there is substantial evidence that the inmate has committed the prohibited act and whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995).
We are convinced that there is substantial evidence in the record to support the Department's determination that appellant altered or damaged governmental property, contrary to N.J.A.C. 10A:4-4.1(a), .152. The record establishes that appellant was in possession of the coat which had been altered to create a concealed pocket that could be used to hide contraband or a weapon. Although appellant asserted that the coat had been issued to him in the altered condition, the hearing officer was not required to accept that explanation.
We also are convinced that there is substantial evidence to support the agency's finding that appellant was in possession of an item that he was not permitted to possess, contrary to N.J.A.C. 10:4-4.1(a), .210. The record shows that appellant was in possession of duct tape, which is not an item that inmates are permitted to possess. Appellant insisted that he did not put the tape in his coat but the hearing officer had the discretion to reject that assertion as well.
Appellant argues, however, that he was denied due process and fundamental fairness because the agency relied upon his prior disciplinary record as a basis for its findings of guilt.
We disagree. The hearing officer did not rely on appellant's prior disciplinary record as evidence to support the charges at issue here. Rather, the hearing officer considered appellant's prior disciplinary record solely for the purpose of determining the sanctions that should be imposed in this matter. This was permitted by N.J.A.C. 10A:4-9.17(a)(1).
We are additionally convinced that, in investigating and adjudicating the charges, appellant was afforded all of the process that was due under the regulations that apply to the imposition of disciplinary sanctions upon inmates in the State's correctional system.
We have considered appellant's other contentions and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).