October 22, 2008
WILLIAM GARCIA, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 29, 2008
Before Judges Collester and Graves.
William Garcia, a state prison inmate, appeals from a final decision by the New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for "conduct which disrupts or interferes with the security or orderly running of the correctional facility," in violation of N.J.A.C. 10A:4-4.1(a) *.306. On appeal, Garcia presents the following arguments:
THE DECISION OF THE HEARING OFFICER WAS NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE THAT APPELLANT COMMITTED A PROHIBITED ACT AND AS SUCH IT CLEARLY VIOLATED APPELLANT'S RIGHT TO DUE PROCESS AND IN THE INTEREST OF JUSTICE SHOULD BE REVERSED.
APPELLANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR HEARING BY THE HEARING OFFICER'S REFUSAL TO MAKE THE RECORDED PHONE CONVERSATION OF APPELLANT AVAILABLE  TO BE PLAYED AT THE HEARING IN SUPPORT OF APPELLANT'S DEFENSE SINCE IT WAS NOT CONFIDENTIAL AND THERE WAS MEANS AVAILABLE FOR IT TO BE PLAYED[.] THEREFORE THE ADJUDICATION SHOULD BE REVERSED.
After reviewing these contentions in light of the administrative record and the applicable law, we are satisfied the DOC's final decision is supported by sufficient credible evidence, R. 2:11- 3(e)(1)(D), and that Garcia's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E).
Accordingly, we affirm with only the following comments.
The charge against Garcia resulted from a Special Investigation Division (SID) investigation into the activities of an inmate group that Garcia belonged to known as the "Hispanic Americans for Progress" (HAP). The purpose of the investigation was to determine whether HAP was involved in money laundering, controlled dangerous substance trafficking, and the introduction of contraband into the prison.
Yvette Molina served as a civilian volunteer for HAP. However, she was banned from the prison in May 2005 for engaging in an inappropriate personal relationship with Garcia. During the SID investigation, telephone calls from Garcia to Molina were monitored and recorded. On December 11, 2006, SID recorded a telephone conversation between Garcia and Molina in which Garcia told Molina not to cooperate with the on-going SID investigation. SID Investigator Dolce summarized the recorded telephone conversation as follows:
On December 11, 2006 at 8:02 AM, inmate Garcia placed a call to civilian Yvette Molina's home telephone number. Upon reviewing this call, Garcia is heard speaking with Molina and she states that she has been contacted by SID, that they have called and written to her. Garcia tells her to not contact them; Molina states that she would like to cooperate. Garcia states that you do not have to talk to them; you do not have to call them. Garcia tells Molina that she does not have to talk to SID and that she should tell them to talk to her lawyer. Molina asked Garcia what would happen if she did not answer them. Garcia told her that she does not have to answer or talk with them (SID). Garcia tells Molina to not call SID. Garcia tells Molina that if they ask her to come and be interviewed at NJSP, to not come. Garcia tells Molina that SID is trying to act like street police and that SID does not have the right to go to anyone's house or to force them to talk.
At his disciplinary hearing, Garcia submitted a written statement in which he admitted telling Molina not to cooperate with the SID investigation. Nevertheless, Garcia argued that the charge should be dismissed because he "did nothing more than advise Ms. Molina of her [c]onstitutional rights." Similarly, in his administrative appeal, Garcia admitted telling Molina she did "not have to speak to SID, contact SID or cooperate with SID," but he asserted "there was no rule or regulation that prevented him from advising his family members or friends of their [c]onstitutional rights."
Paragraph eight of the disciplinary report delivered to Garcia on May 15, 2007, provided the following description of the alleged infraction: "An investigation has determined that inmate Garcia did engage in witness tampering. Specifically, inmate Garcia did instruct a witness being sought in a criminal investigation being conducted by this department to not cooperate, contact or speak to SID." After reviewing the evidence, including the recorded telephone conversation and Garcia's videotaped interview, the hearing officer concluded there was substantial evidence to support the charge:
HO [hearing officer] relies on report [from] Inv. Dolce (c-1 - summary attached) which states that an investigation revealed that inmate Garcia had fostered an inappropriate relationship with Ms. Molina while she was a volunteer with the HAP program in NJSP during the calendar year of 2004. The report also states that during the initial phases of the investigation Inv. Dolce contacted Ms. Molina and attempted to interview her regarding the matter. After the initial contact with Ms. Molina she agreed to meet with Inv. Dolce and be interviewed. However, the investigation determined that after a telephone conversation between inmate Garcia and Ms. Molina, Ms. Molina declined to take part in the interview. As of the date of the report Ms. Molina could not be contacted by Inv. Dolce.
HO also relies on a-1 (summary of recorded conversation) and a1-a (review of recorded conversation by this HO) between Ms. Molina and inmate Garcia. During the conversation inmate Garcia is heard stating to Ms. Molina not to take part in questioning by SID. HO also notes a-3, videotaped interview with inmate Garcia (summary attached a-3-a).
Inmate argued that he did not know that there was a criminal investigation taking place and therefore did not violate any regulations. However, by virtue of the fact the inmate is recorded instructing Ms. Molina not to take part in an official SID inquiry the inmate did in fact interfere with that investigation and thereby inhibited SID from completing a criminal and administrative investigation.
Therefore based on the documentary evidence presented as well as the review of the recorded telephone conversations and summaries enclosed it is reasonable to conclude that inmate Garcia did interfere with an official criminal and administrative investigation. That interference did inhibit the investigator in his attempt to obtain information that would impact on the security of the facility. Therefore, there is substantial evidence to support the charge.
A finding of guilt at a disciplinary hearing must be "supported by substantial evidence." Avant v. Clifford, 67 N.J. 496, 530 (1975). Substantial evidence is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).
The scope of our review is limited. "Ordinarily, an appellate court will reverse the decision of [an] administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); accord Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). "We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005).
In the present matter, Garcia received a fair hearing, and the DOC's decision is supported by substantial credible evidence. Consequently, the final agency decision is neither arbitrary, capricious, nor unreasonable.
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