November 26, 2008
LUIS MATEO, APPELLANT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 November 6, 2008
Before Judges Parrillo and Lihotz.
This is a prison disciplinary appeal. Luis Mateo, an inmate currently confined at East Jersey State Prison, appeals from a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.258, refusal to submit to testing for prohibited substances, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
The evidence established that on November 6, 2007, Senior Corrections Officer (SCO) Robbins reported to Sergeant Sprately that Mateo appeared "disoriented and his eyes looked glazed over." Consequently, at 5:15 p.m., Sergeant Sprately ordered Mateo to submit to a urine specimen. Because he believed that Mateo tampered with his urine sample, Sprately initiated a *.261 charge and transferred Mateo from intake to the hospital, and then to pre-hearing detention. While Mateo was in detention, SCO Rodriquez reported to Sprately at 7:18 p.m. that Mateo had refused to urinate, stating "you guys are trying to set me up I am not pissing." Because he did not provide a urine specimen within the requisite two-hour period allowed inmates, N.J.A.C. 10A:3-5.11(i)(1) and (2), Mateo was then charged with committing prohibited act *.258.
Mateo pled not guilty to the charge and was provided counsel substitute. At the November 19, 2007 hearing, Mateo gave the following statement:
[T]hey took me to detention. I did not get a chance to piss. I am willing to submit at any time. I was brought back here. Sprately changed his statement. He said I refused down at detention. After they brought me down here [detention] they never came back to ask for my urine. I/m [inmate] requested leniency.
Counsel substitute also made a statement on Mateo's behalf:
He [Mateo] did not put anything in the urine. There were three inmates in there with him. He was actually only given 3 minutes to provide a urine sample. Also the initial order was voided when they changed locations. When they brought him down to detention they have to give him another 2 hours because that's another different order. Also, the log book will show Sprately never came down here to detention. They should have kept him at intake the remainder of the 2 hours. The designated area is intake and they moved him from there. We request a dismissal for the long delay.
In finding Mateo guilty of the disciplinary charge, the hearing officer concluded:
I/M [inmate] pled not guilty but is found guilty as Im did not provide a urine sample in the required 2 hours. There was adequate probable cause in (A6) SCO Robbins notifying the Sgt. of the IM behavior & appearance, and the order to void was legally given by the sergeant at 5:15 pm. The Im was given 2 hours to provide a sample but refused at 7:15 pm. The fact that the Im's location was changed from intake to the hospital to detention does not mean a new order to void has to be given. The original 5:15 order still stands. The clock "continues to tick" and the Im knew he had to provide the sample. Report indicates that at 7:15 [pm] Im even stated "I'm not pissing" as a final refusal. Im had an adequate water supply, witnesses had no statement regarding whether or not a sample was provided or refused. Im was offered in person confrontation, but declined the offer, including whether or not Sprately actually was present in detention at 7:15. A clerical omission in a log book does not mean that a staff member wasn't there and counsel sub[stitute] notation is without merit.
Upon being adjudicated guilty, Mateo was sanctioned: fifteen days of detention, with credit for time served; 180 days of administrative segregation; permanent loss of contact visits; 180 days loss of commutation time; 180 days of urine monitoring, and drug programming. This determination was upheld on administrative appeal.
On appeal here, Mateo argues that he was denied due process because: (1) the chain of custody was broken; (2) he was not in the proper testing area when required to provide a urine sample; (3) correction officers failed to follow the proper procedures for urine testing; (4) the 5:15 p.m. order to provide a urine sample was void because he was moved from intake to the hospital and then to detention where he was supposedly left alone; (5) neither SCO Rodriguez nor Sgt. Sprately were present in the pre-hearing detention area at 7:15 p.m. when Mateo was asked to provide a urine specimen; (6) he was provided with ineffective assistance of counsel because his counsel substitute did not request in-person confrontation of the correction officers; and (7) that three separate hearing officers adjudicated his disciplinary hearing, and he therefore, should be granted a new disciplinary hearing pursuant to Ratti v. Dep't of Corr., 391 N.J. Super. 45 (App. Div. 2007), which held that "when credibility determinations are to be made, it is imperative that a single finder of fact receive all the evidence and make determinations based on all of the proofs." Id. at 47. We have considered each of these contentions in light of the record and the applicable law and are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We add, however, the following comments.
When commanded, inmates are required to void urine samples within a two-hour period. Thus, N.J.A.C. 10A:3-5.11(i)(1) and (2) provide:
(i) No inmate shall be disciplined for refusing to provide a specimen or failing to comply with an order to submit a specimen unless that inmate has been given a reasonable physical opportunity to comply with such order.
(1) For the purposes of urine testing, a reasonable physical opportunity shall constitute a two-hour period from the time of the initial order. The inmate may be required to remain in isolation during this two-hour period. (Emphasis added.)
(2) The inmate shall not be deemed to have complied with the order to submit a specimen unless he or she provides a specimen in the presence of a custody staff member or other authorized staff member.
Nothing in this regulation, however, requires a specific designated area wherein an inmate, when ordered, must provide a urine sample. Nor does the regulation require that an inmate be monitored during the two-hour period, as long as the urine sample is provided in the presence of custody staff. On this score, Mateo now argues that neither SCO Rodriguez nor Sergeant Sprately were present at 7:15 p.m. when, it is claimed, he refused to provide the urine sample. This argument, however, is directly contradicted by his other contention that SCO Rodriguez should have written the report because he witnessed Mateo refusing to provide a urine sample, and by the fact that below, Mateo never denied being asked to provide a urine sample at 7:15 p.m.
Equally without merit is Mateo's related claim that the original order at 5:15 p.m. was somehow void because of his transfer from the intake area and, consequently, the charge written at 7:18 p.m. gave him only three minutes to provide a urine sample rather than the two hours allowed. As noted, there is no specific designated area wherein inmates are required to void urine samples and no requirement that the two-hour waiting period must occur in one single designated location. Moreover, since Mateo never provided a urine specimen, there was no need to establish a chain of custody of his person for the allotted two-hour waiting period, and the fact that he may have been left alone or unmonitored for some of that time is irrelevant.
As to Mateo's claim of ineffective assistance of counsel substitute for failing to confront adverse witnesses, suffice it to say, he never raised the issue below, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and in any event was fully aware of his right to request such confrontation. Indeed, he was present at the hearing and was offered in-person confrontation, but declined the invitation twice. In contrast, he accepted the offer to call witnesses on his own behalf and submitted the written statements of two inmates. And finally, contrary to his claim that he was subjected to multiple fact-finders in violation of Ratti, supra, the evidentiary phase of the hearing was conducted solely by Hearing Officer Maguire, who documented and reviewed all of the DOC's evidence against Mateo prior to making a decision.
In sum, we conclude that, as a matter of law, the 5:15 p.m. order to void was not terminated by Mateo's movement to the hospital and detention, N.J.A.C. 10A:3-5.11(i)(1); that, as a matter of fact, there is substantial, credible evidence of Mateo's guilt, Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980); and that, as a matter of fairness, Mateo was provided adequate due process protections in the filing, processing and hearing of the charge against him. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975).
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