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Barrenechea v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 21, 2009

LORENZO BARRENECHEA, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 15, 2009

Before Judges Carchman and Parrillo.

Appellant Lorenzo Barranenchea, an inmate at East Jersey State Prison (EJSP), appeals from a final decision of the Department of Corrections (DOC) revoking the visiting privileges of appellant's visitor, Melissa Gell. The revocation was based on Gell's involvement in appellant's commission of three prohibited acts, N.J.A.C. 10A:4-4.1, within a one-year period. We affirm.

These are the relevant facts. Following two incidents occurring in June 2007 and April 2008, appellant was charged and adjudicated with violating prohibiting act *.703, "conduct with a visitor in violation of regulations," followed by a violation of prohibited act *.704, "perpetrating frauds, deceptions, confidence games, riots or escape plots."

In the first incident, occurring on June 20, 2007, the DOC found appellant guilty of prohibited act .703, when he engaged in inappropriate sexual conduct with Gell during visitation. As a result of that incident, appellant received sanctions including loss of contact visits for ninety days and his visitor, Gell, temporarily lost her visiting privileges.

Gell's visiting privileges were restored, but on April 27, 2008, she was involved in another incident involving sexual acts with appellant while she visited the prison. Again, the prison placed a temporary visitation ban on Gell, this time with a one year minimum, and appellant received sanctions including ten days detention and loss of contact visits for 180 days.

On June 4, 2008, the Department charged appellant with committing prohibited act *.704, "perpetrating frauds, deceptions, confidence games, riots or escape plots," by fraudulently obtaining money from EJSP inmates who sent money to appellant's intermediaries, Gell and her mother Justina Hildago, in payment for paralegal services rendered by appellant while in prison.

The DOC determined that forty inmates had sent fifty-eight money remits to Hidalgo, the mother and co-resident of Gell, at a post office box located in Rahway and registered in the name of both women. An investigator provided the content of a phone conversation between appellant and Gell in which appellant allegedly admitted performing paralegal work for inmates in return for money. During the conversation, appellant indicated that he would claim that the inmates had sent him "gifts" to demonstrate appreciation for his efforts.

Ultimately, the DOC concluded that there was substantial evidence demonstrating that appellant violated *.704. In its findings, the Department concluded that Gell and Hildago accepted money from EJSP inmates on behalf of appellant. As a result, the prison sanctioned appellant and permanently terminated Gell's visiting privileges.

Appellant sought reinstatement of Gell's privileges and after administrative review, the DOC determined that the ban was appropriate. This appeal followed.

On appeal, appellant raises two issues.

POINT I

Administrative decision to permanently ban Appellants [sic] fiance/visitor [sic] grossly and intentionally, violated Appellants [sic] state and federal constitutional rights to freedom of association, equal protection, liberty interest and against double punishment, cruel and unusual punishment as protected by the 1st, 5th, 8th and 14th Amendments of the U.S. Constitution and established, authorized and safeguarded through N.J.S.A. 30: N.J.S.A. 52; N.J.A.C. 10A:4-5.1 and N.J.A.C. 10A:18-6.1 and is arbitrary, capricious and unreasonable, therefore Appellants visitors permanent ban should be lifted, reversed and dismissed.

POINT II

Administrative decision to permanently ban Appellants [sic] fiance/visitor [sic] without any modicum of due process, grossly and intentionally, violated Appellants [sic] state and federal constitutional right to due process, equal protection, liberty interest and procedural safeguard as protected by the 5th and 14th Amendment of the U.S. Constitution and established, authorized and safeguarded through N.J.S.A. 30: N.J.S.A. 52: N.J.A.C. 10A:4-5.1 and N.J.A.C. 10A:18-6.1 and therefore Appellants visitors [sic] permanent ban should be lifted, reversed and dismissed.

We have carefully reviewed appellant's brief and the record and we conclude that his arguments, including his constitutional claims, are without merit. R. 2:11-3(e)(1)(E). We add the following observations.

A visit ban may be imposed on an inmate's visitor if the visitor engages in conduct, which impacts on the ability of the DOC to "ensure the safe, secure and orderly operation of the correctional facility and the visiting room." N.J.A.C. 10A:18-6.19(b)(12). On two prior occasions, while visiting, Gell acted inappropriately and was given progressively more restrictive suspensions of her privileges. See N.J.A.C. 10A:18-6.19(c) (mandating that prior to the imposition of a ban on visitation, less restrictive action should be taken). Even while the suspension was in place, she engaged in conduct with appellant that undermined the safety and security of the correctional facility.

We also agree with the DOC's argument that N.J.A.C. 10A:18-6.19(a) (stating; "[a]n inmate's visiting privileges shall not be denied because of a violation of correctional facility regulations, other than those regulations specifically related to or concerned with visiting privileges, except in the case of a termination of contact visits sanction as established in N.J.A.C. 10A:4-5.1(a)"), does not bar the termination of privileges. Gell had been involved in two prior visiting privilege offenses and now participated with appellant in a violation of other regulations. The DOC should not be compelled to disregard her prior conduct and can properly bar her entry into the facility.

We will not upset the ultimate determination of an agency unless shown that "it was arbitrary, capricious or unreasonable, or it violated legislative policies expressed or implied in the act governing the agency's actions." Gill v. New Jersey Dep't of Banking and Ins., 404 N.J. Super. 1, 9 (App. Div. 2008) (Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

The scope of our review of administrative regulations is also limited. Lewis ex rel. Lewis v. Catastrophic Illness in Children Relief Fund Comm'n of State of N.J., 336 N.J. Super. 361, 369 (App. Div.), certif. denied, 168 N.J. 290 (2001). "Administrative regulations are accorded a presumption of validity." Ibid. (citing N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 221 (1999)). "The party challenging their validity bears the burden of proving that the regulations are arbitrary, capricious or unreasonable, or beyond the scope of the [agency's] delegated power." Ibid. (citations omitted). The "courts have a 'strong inclination to defer to agency action provided it is consistent with the legislative grant of power.'" In re Hartz/Damascus Bakery, Inc., 404 N.J. Super. 49, 68 (App. Div. 2008) (quoting Lewis, supra, 336 N.J. Super. at 369-70), certif. denied, ___ N.J. ___ (2009).

We are satisfied that given the unique factual circumstances presented here as well as Gell's continued conduct that violates DOC rules and regulations, the DOC acted properly in barring her visiting privileges.

Affirmed.

20090821

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