July 18, 2008
CARMELO ORTIZ, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2008
Before Judges Parker and Gilroy.
Petitioner Carmelo Ortiz appeals from a disciplinary report dated September 4, 2007 finding him guilty of a minor infraction characterized as an On-The-Spot-Correction or OTSC, and a memorandum of decision dated October 15, 2007, indicating that petitioner had "already received all required due process in this matter."
The charge against defendant arose on September 3, 2007 when a senior corrections officer (SCO) undertook a routine search of petitioner's cell. During the search, the SCO found a pair of Nike Air (Michael Vick) sneakers in a boot box on a shelf behind a television. The sneakers were not a permitted item for inmates and, on September 4, 2007, petitioner was charged with committing prohibited act .210, possession of items not authorized for retention or not issued to the inmate through the correctional facility in violation of N.J.A.C. 10A:4-4.1(a). An investigation was conducted and petitioner pled not guilty. At the conclusion of the investigation, it was determined that the charge was warranted and the matter was set down for a disciplinary hearing.
The hearing was initially scheduled for September 6 and 10 but was postponed to September 12 because of a facility lockdown. Petitioner did not request a counsel substitute, nor did he present any witnesses. After petitioner was found guilty of the violation and it was downgraded to an OTSC, pursuant to N.J.A.C. 10A:4-7.2, the sneakers were confiscated as a sanction. In this appeal, petitioner argues:
THE DISCIPLINARY HEARING OFFICER'S FAILURE TO PROVIDE THE APPELLANT WITH A WRITTEN EXPLANATION AS TO THE EVIDENCE RELIED UPON TO SANCTION THE CONFISCATION DEPRIVED HIM OF FAIRNESS AND DUE PROCESS
THE ADMINISTRATOR'S FAILURE TO ADDRESS THE APPELLANT'S DISCIPLINARY APPEAL DEPRIVED HIM OF FAIRNESS AND DUE PROCESS
THE APPELLANT ESTABLISHED THROUGH EXCULPATORY DOCUMENTARY EVIDENCE THAT HE RECEIVED THE CONFISCATED FOOTWEAR THROUGH REGULAR PRISON FACILITY CHANNELS, THEREFORE, HE IS ENTITLED TO THE RETURN OF HIS PROPERTY
We have carefully considered petitioner's arguments and find that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.
In his second point, petitioner argues that the administrator's failure to address his appeal within the DOC deprived him of fairness and due process. Under the circumstances of this case, where the charge was downgraded to an OTSC, petitioner was not entitled to an administrative appeal within the agency. N.J.A.C. 10A:4-7.2(e). Petitioner was provided with all of the due process to which he was entitled under the Administrative Code and Avant v. Clifford, 67 N.J. 496, 522 (1975).
Moreover, the disciplinary report clearly indicates that the hearing officer relied upon the report of the investigating officer and petitioner did not present any witnesses to contradict that evidence.
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