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Brocato v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 22, 2009

CLAUDIO BROCATO, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2009

Before Judges Skillman and Grall.

Claudio Brocato, an inmate presently confined at East Jersey State Prison, appeals from an adjudication of disciplinary infractions for an act prohibited by N.J.A.C. 10A:4-4.1(a), "*.202 possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool." The objects - two pieces of metal sharpened to a point and seven exposed razor blades - were discovered in the folds of a metal desk and shelving during a search of the cell occupied by Brocato and another inmate.

Prior to the hearing, counsel substitute was appointed. Brocato also filed a request for a polygraph test in which he asserted that he had inspected the cell when he took occupancy and that the objects the officers found were not there. The Administrator denied a polygraph noting that the hearing officer could assess the credibility of his claims. See N.J.A.C. 10A:3-7.1.

Brocato did not testify at the hearing and, although he was given the opportunity, did not ask to present or confront any witness.

Based on reports filed by the officers involved in the search and on photographs of the objects recovered, the hearing officer found Brocato guilty of prohibited act *202. He recommended a sanction consisting of fifteen days' detention, 365 days' loss of commutation time and 365 days' administrative segregation. Brocato filed an administrative appeal, but the Administrator concluded that the hearing officer had afforded Brocato all of the required procedural protections and reached a decision supported by substantial evidence.

On this appeal Brocato presents the following issues for our consideration:

I. I HAVE A LEGAL RIGHT TO A[N] ADVERSARIAL DISCIPLINARY HEARING, WITH ALL THE PROTECTIONS AFFORDED BY AVANT V. CLIFFORD AND PROGENY.

A. I HAVE A RIGHT TO A POLYGRAPH EXAMINATION. (NOT RAISED BELOW)*fn1

B. THE REPORTS FILED BY THE DOC ARE ILLEGIBLE, AND I HAVE A RIGHT TO READ ALL OF THE REPORTS. (NOT RAISED BELOW)

II. THE HEARING OFFICER['S DECISION] WAS NOT BASED UPON SUBSTANTIAL EVIDENCE AS MANDATED BY N.J.A.C. 10A:4-9.15(A).

Because the decision of the "administrative agency is supported by sufficient credible evidence on the record as a whole," we affirm. R. 2:11-3(e)(1)(D). Brocato's arguments about the fairness of the proceeding warrant only brief comment.

R. 2:11-3(e)(1)(E). The documentary evidence on which the adjudication is based is legible and the photographs clearly depict the contraband. Further, the Administrator did not abuse his discretion when he concluded that the hearing officer could fairly evaluate the credibility of Brocato's denial of knowledge without the results of a polygraph. See N.J.A.C. 10A:3-7.1; Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005).

Affirmed.


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