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Perez v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 19, 2008

MARCOS PEREZ, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Determination of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2008

Before Judges Fuentes and Gilroy.

Appellant Marcos Perez appeals from the final decision of the New Jersey Department of Corrections (DOC), finding him guilty of committing prohibited act *.203, possession or introduction of any prohibited substances such as drugs, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On August 20, 2007, during a routine search of appellant's cell at the Northern State Prison, Newark, Senior Corrections Officer Lester Thompson observed a small white packet of an unknown substance lying on top of a television set located in a common area of the cell, which appellant shared with inmate Ronald Serrano. Believing that the packet contained a controlled dangerous substance, Officer Thompson confiscated it and charged defendant the following day with *.203, possession of a prohibited substance. On September 19, 2007, the New Jersey State Police Office of Forensic Sciences analyzed the contents of the packet and determined that the substance was heroin.

Appellant pled not guilty to the charge; requested and was granted confrontation with Officer Thompson on September 5, 2007; was granted counsel substitute; and was provided access to the DOC's non-confidential evidence, but did not call any witnesses on his behalf at the hearing. On completion of the hearing, the hearing officer determined appellant guilty of committing the prohibited act. Initially, believing that appellant had recently been found guilty of prohibited act "[*].204" in June 2007, the hearing officer announced that he was imposing sanctions of time served in pre-hearing detention; 300 days administrative segregation; 300 days loss of commutation time; 300 days urine monitoring; and permanent loss of contact visits. After appellant informed the hearing officer that he had not been found guilty of a prohibited act in June 2007, the hearing officer modified and reduced the sanctions to: time served in pre-hearing detention; 270 days administrative segregation; 270 days loss of commutation time; 270 days urine monitoring; and permanent loss of contact visits.

On appeal, appellant argues that he was denied procedural due process and that the decision of the DOC was not based on substantial, credible evidence in the record. Specifically, appellant contends that: 1) the DOC did not conduct the disciplinary hearing timely; 2) while one hearing officer commenced the disciplinary proceeding, a second hearing officer conducted the final hearing; 3) he was denied the right to call his cellmate as a witness, contending that Serrano would have admitted possession of the CDS found on the top of the television set during the search; 4) Officer Thompson's statement that he observed Serrano flush a substance down the toilet and found the packet of heroin on the television set does not constitute substantial, credible evidence of appellant's possession of the heroin; 5) the hearing officer relied on an incorrect and false prior record in formulating appellant's sanction, citing a June 2007 "[*].204" charge; and 6) part of the record supplied to defendant during the hearing was illegible.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

We have considered each of appellant's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Appellant contends that he was denied the right to call his cellmate Serrano as a witness during the disciplinary hearing. The record does not support this contention. The record is devoid of any evidence that appellant requested the hearing officer to call appellant's cellmate as a witness. Line 14(c) of the adjudication report indicates that appellant did not request any witnesses, and on Line 16 of the report, appellant's counsel substitute acknowledged that this was an accurate statement.

Appellant argues that the hearing officer improperly relied on an incorrect and false prior record in formulating appellant's sanction, referencing the hearing officer's statement of reasons for imposing sanctions as: "recent[] 204 6-07" and "long history of extremely negative [disciplinary] history." Appellant contends that he was never found guilty of a prohibited act in June 2007. Appellant raised this argument before the hearing officer, and as a result, the hearing officer modified and reduced the sanctions. On administrative appeal, the DOC determined that the final sanctions were "proportionate to the offense." We find no basis to disturb the sanctions imposed.

In conclusion, we find that the due process protections required by Avant v. Clifford, 67 N.J. 496, 525-33 (1975) were afforded to appellant in this case; the decision of the DOC was not arbitrary, capricious, or unreasonable, Henry, supra, 81 N.J. at 579, but instead was supported by substantial evidence in the record, Jacobs v. Stephens, 139 N.J. 212, 222 (1995); and the arguments raised by appellant on appeal lack merit. Accordingly, we affirm the decision of the DOC.

Affirmed.

20080919

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