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Curcione v. Dep't of Corrections


May 11, 2009


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

Per curiam.


Submitted April 22, 2009

Before Judges Lihotz and Messano.

Inmate Angelo Curcione appeals from the final agency action of the Department of Corrections (D.O.C.) finding him guilty of committing prohibited act *.803/*.215, attempted "possession with intent to distribute or sell prohibited substances," N.J.A.C. 10A:4-4.1(a), and imposing sanctions. On appeal, Curcione contends 1) he was improperly denied a polygraph test; 2) a change in counsel substitute "caused confusion" thus denying him a "fair and impartial hearing"; 3) because his adjudicatory hearing was delayed, he was denied his due process rights; and 4) the proof of his violation was insufficient. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

On March 25, 2008, the Special Investigations Division (SID) of D.O.C. recorded a phone conversation between Curcione and an unidentified female. The discussion involved a "cousin Tony" and the collection of monies from other inmates. During the conversation, the other caller referred to "Tony" by the first name "John." SID received information from a confidential informant that Curcione had received a shipment of narcotics smuggled into the facility by a maintenance worker, John Egelsen.

Egelsen was subsequently arrested and SID interviewed Curcione. He admitted that he had arranged a meeting between his girlfriend, Rosemary Hearn, and Egelsen, to facilitate smuggling drugs into the prison. Curcione provided the names of several inmates that had sent money to Hearn in anticipation of receiving the drugs. SID was able to verify that at least one inmate had mailed $125 to Hearn. Curcione would not, however, provide a written statement to SID.

D.O.C. served its disciplinary charges upon Curcione on April 17, 2008, and the first scheduled hearing, the next day, was adjourned to allow collection of the reports from SID. Several other adjournments took place, one, in particular, so that Curcione could listen to the intercepted phone conversation. He subsequently declined the opportunity to hear the tape.

On May 1, 2008, represented by counsel substitute, Curcione gave a statement to the hearing officer in which he claimed that Egelsen was his girlfriend's ex-cousin, and that together, they were collecting money for a food package for him and other inmates. He further denied giving any oral statement to SID.

Counsel substitute provided a statement to the hearing officer in which he argued the evidence was insufficient. Counsel substitute indicated that Curcione was waiving any request for a polygraph exam and further waiving his right to confront adverse witnesses.

The hearing officer, relying upon the taped phone conversation, the admissions Curcione made to SID, and the other reports, concluded he was guilty of the disciplinary infraction and imposed sanctions. On Curcione's administrative appeal, the finding and sanctions were affirmed by the associate administrator. This appeal ensued.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Substantial evidence means "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)(quotations and citations omitted) D.O.C.'s regulations require any "finding of guilt at a disciplinary hearing [ ] be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a).

Turning to the specific arguments Curcione raises, we conclude he never requested a polygraph test; in fact, his counsel substitute specifically waived such a request. Moreover, since the issue was never raised below, we refuse to consider it. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

The same is true regarding his claim, raised now for the first time, that the change in counsel substitute "denied [him] a fair and impartial hearing." He contends that a different counsel substitute was supplied on the date of the hearing. However, Curcione never objected to the procedure below, and he has failed to point to any specific manner in which having a different counsel substitute prejudiced him.

With respect to the several adjournments of the hearing, N.J.A.C. 10A:4-9.9(a) specifically provides that "[t]he failure to adhere to any of the time limits prescribed . . . shall not mandate the dismissal of a disciplinary charge." Instead, the hearing officer is permitted to exercise his or her discretion after consideration of "[t]he length of the delay[,] [] [t]he reason of the delay[,] [] [p]rejudices to the inmate in preparing his/her defense[,] and [] [t]he seriousness of the alleged infraction." N.J.A.C. 10:4-9.9(a)(1) to (4). Here, the length of the delay was short, the reasons were sufficient, the infraction was serious, and Curcione has demonstrated no prejudice.

Lastly, the evidence in this matter was undoubtedly substantial, and defendant's argument to the contrary does not warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).



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