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Vasquez v. Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2009

ISRAEL VASQUEZ, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Payne and Waugh.

Appellant Israel Vasquez, who is currently incarcerated at New Jersey State Prison (NJSP), appeals from the imposition of discipline arising out of an incident that took place when he was at East Jersey State Prison (EJSP). Vasquez appeals from a final agency decision of the Department of Corrections (DOC) imposing disciplinary sanctions for committing the following prohibited acts in violation of N.J.A.C. 10A:4-4.1(a): (1) *.009, "misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention";*fn1 (2) *.202, "possession or introduction of a weapon, such as but not limited to, a sharpened instrument, knife or unauthorized tool"; and (3) *.203, "possession or introduction of any prohibited substance such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff." We affirm.

I.

We glean the following facts from the record. On September 13, 2007, while housed at EJSP, Vasquez's cell was searched by Senior Investigator Holtslander and Senior Investigator Negron. A cell phone, a cell phone charger, a Playstation portable gaming device, ten Playstation game disks, a bluetooth cell phone ear piece, altered wires connected to a walkman radio, a pen with two marijuana cigarettes, a box cutter blade, a razor blade, and a five inch ice-pick-style weapon were discovered in hollowed out legal briefs in Vasquez's cell.

On September 14, 2007, based upon the above, Vasquez was charged with three *.009 charges, three *.202 charges, and one *.203 charge.

On September 19, 2007, the matter was heard before Hearing Officer McGovern. Vasquez asked for and was assigned a counsel substitute. At the hearing, he entered a plea of guilty to all seven charges. Vasquez did not request any witnesses, although he had the right to do so. Likewise, Vasquez was offered the opportunity to confront/cross-examine adverse witnesses, but declined the offer.

Vasquez made the following statement on his own behalf:

I am taking responsibility for these charges. My cellmate had nothing to do with these. I spoke with those two [Special Investigation Division] guys from EJSP the other day. They had no interest to pursue this case. I have been charge free for two years.

Vasquez's counsel substitute requested leniency on Vasquez's behalf.

The hearing officer relied upon the disciplinary reports, investigation reports, and photos of the items seized. He noted that he did not rely solely on Vasquez's guilty plea, but that he also relied on the evidence and Vasquez's statement. After finding Vasquez guilty of the three *.009 charges, the hearing officer recommended sanctions as follows: (1) on the first charge, possession of altered wires, 180 days administrative segregation, 180 days loss of commutation time, and permanent loss of contact visits; (2) on the second charge, possession of a cellular phone, 15 days detention, 365 days administrative segregation, 365 days loss of commutation time, and permanent loss of contact visits; and (3) on the third charge, possession of bluetooth cellular devices, 15 days detention, 365 days administrative segregation, 365 days loss of commutation time, and permanent loss of contact visits.

The hearing officer also found Vasquez guilty of the three *.202 charges. He recommended sanctions as follows: (1) on the first charge, possession of a five inch ice-pick-style weapon, 365 days administrative segregation, 365 days loss of commutation time, and referral to the classification committee for placement in the Management Control Unit; (2) on the second charge, possession of a razor blade, 365 days administrative segregation and 365 days loss of commutation time; and (3) on the third charge, possession of a box cutter blade, 365 days administrative segregation and 365 days loss of commutation time.

After finding Vasquez guilty of the *.203 charge, the hearing officer recommended sanctions of 90 days urine monitoring, 90 days loss of commutation time, 90 days administrative segregation, and permanent loss of contact visits.

In recommending the sanctions, the hearing officer noted that he considered the fact that Vasquez had accepted responsibility for the incident; however, he also considered the nature of the offenses, Vasquez's extensive disciplinary history, the need for security within the prison, and the need to deter such conduct.

On March 24, 2008, Vasquez administratively appealed the hearing officer's decision. On April 2, 2008, the administration of EJSP upheld the guilty finding and the imposition of sanctions. This appeal followed.

II.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

We have considered each of Vasquez's arguments in light of the record and applicable law. We conclude that: (1) the disciplinary decision was supported by sufficient credible evidence in the record as a whole, especially in light of Vasquez's admission of guilt; (2) the penalties imposed were consistent with the schedule of penalties in N.J.A.C. 10A:4-5.1; and (3) the arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The sanctions imposed were within the parameters of N.J.A.C. 10A:4-5.1(a) and does not "shock[] the judicial conscience," State v. Ghertler, 114 N.J. 383, 388 (1989) (in the context of a criminal appeal). Given the deference owed to the administrative agency, we see no reason to disturb it.

Affirmed.


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