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Javiar v. New Jersey Dep't of Corrections

December 5, 2008

EDDIE JAVIAR, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2008

Before Judges Lisa and Reisner.

In these two appeals, which we have consolidated for purposes of this opinion, Eddie Javiar, an inmate serving a thirty-year sentence for murder and unlawful weapons possession, challenges disciplinary action imposed by the Department of Corrections (DOC). We affirm.

Both appeals arise from the same set of facts. In 2005, the DOC discovered a widespread conspiracy in which inmates at the New Jersey State Prison were sending funds to a specified address and in return were obtaining various contraband, including cell phones, drugs, weapons and escape paraphernalia which were being smuggled into the prison system. Through information from a confidential informant, the DOC learned that Javiar was participating in the conspiracy by telling other inmates how to get the contraband and particularly, where to send the funds. DOC also learned that more than $85,000 had been sent by inmates to addresses at which Javiar's relatives lived.

Because the conspiracy was considered a significant threat to the institution's security, Javiar, as a suspected participant, was placed in the Management Control Unit (MCU), a highly secure area of the New Jersey State Prison, before he was given a hearing on the underlying disciplinary charges. Following a hearing on the disciplinary charges, Javiar was found guilty of prohibited act *.803/*.306 attempting to commit conduct that disrupted the security of the institution. See N.J.A.C. 10A:4-4.1(a). He was found not guilty of distributing drugs, soliciting funds from other inmates and operating a business for profit. The following discipline was imposed based on that finding: 15 days detention with credit for time served, 365 days loss of commutation time, and 365 days administrative segregation. Javiar also remained in the MCU, subject to periodic hearings to review his placement there.

Javiar challenges both his placement in the MCU and the finding of guilt on the charge of disrupting institutional security. As to both appeals, we must affirm the DOC's determinations so long as they are supported by sufficient credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Judged by that standard, we find no basis to disturb either decision.

We first address Javiar's challenge to the outcome of his disciplinary hearing. Javiar raises the following points for our consideration:

POINT I: THE FINAL AGENCY DECISION WHICH FOUNDED APPELLANT GUILTY OF VIOLATING PROHIBITED ACT *803/*306 WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND VIOLATED APPELLANT'S RIGHT TO DUE PROCESS.

POINT II: THE HEARING OFFICE'S FAILURE TO EXPLAIN WHY SHE FOUND CONFIDENTIAL INFORMANT'S RELIABLE VIOLATED N.J.A.C. 10A:4-9.15(b)(1)(i)(ii) AND APPELLANT'S RIGHT TO DUE PROCESS.

POINT III: THE ADMINISTRATOR OF NEW JERSEY STATE PRISON SHOULD HAVE GRANTED APPELLANT A NEW HEARING WHEN IT WAS REVEALED THAT INFORMATION REGARDING 5 INFORMANTS WAS NOT PROVIDED TO APPELLANT DURING HIS HEARING. POINT IV: THE AGENCY DECISION TO START THE DISCIPLINARY HEARING WITH ONE HEARING OFFICE, THEN FINISH WITH ANOTHER HEARING OFFICE VIOLATED THIS COURT'S MANDATES IN RATTI V. DEPARTMENT OF CORRECTIONS.

Having reviewed the record, we conclude that Javiar's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Javiar argues in essence that he could not be found guilty of the disruption charge if he was found not to have committed the other offenses of which he was accused. We disagree. According to confidential informants, Javiar was involved in a conspiracy to bring contraband into the prison. His part was to provide other inmates with information about where they could get the contraband and where to send their money, although he did not distribute the contraband himself. Even if the hearing officer determined that there was insufficient evidence to find Javiar guilty of actually possessing or ...


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