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Pantusco v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 21, 2010

PATRICK PANTUSCO, APPELLANT,
v.
NEW JERSEY 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 June 9, 2010

Before Judges Axelrad and Fisher.

Appellant Patrick Pantusco is a prison inmate. In 1998, he began serving a fifty-year prison term, subject to a thirty-year period of parole ineligibility. While an inmate at East Jersey State Prison, Pantusco was charged with violating *.708, refusing to submit to a search, N.J.A.C. 10A:4-4.1(a). After a hearing, Pantusco was found to have committed the lesser-included, non-asterisk prohibited act.256, refusing to obey an order of any staff member, N.J.A.C. 10A:4-4.1(a). The hearing officer imposed 10 days detention, 90 days administrative segregation, 60 days loss of commutation time, and 35 days loss of recreation privileges. The assistant superintendent upheld the findings as well as the sanctions imposed.

Pantusco appeals this final agency determination, arguing he was deprived of due process because: (a) the investigating officer was also involved in the incident, contrary to N.J.A.C. 10A:4-9.5(b); (b) the prison officials violated N.J.A.C. 10A:4-5.3(a), which requires that charges be adjudicated prior to the completion of the inmate's disciplinary detention time; and (c) his request for a polygraph examination was denied in violation of N.J.S.A. 10A:3-7.1(a). Pantusco also argues the findings were against the weight of the evidence, and the sanctions imposed were excessive or arbitrary. We find insufficient merit in these arguments to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(D). We add only the following.

Pantusco's argument that the evidence was insufficient to support a finding that he failed to obey an order of a staff member is not persuasive. The record, in fact, reveals that Pantusco acknowledged in a statement he gave that he had refused a correction officer's direction that he stop. That is, Pantusco acknowledged his refusal, but claimed he was justified in refusing because the officer had improperly groped him on an earlier occasion. Refusal, he claimed, was his only means of protection from the officer's inappropriate and unlawful conduct.

Having closely examined the record, we are satisfied the hearing officer's finding was based upon substantial evidence worthy of credit. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). And, although the adjudication was unfortunately delayed, some of the reasons for the delay were fairly attributed to the need to obtain videotapes and written statements relevant to Pantusco's factual contentions, as well as the logistical difficulties caused by the intervening transfer of Pantusco to Northern State Prison.

Affirmed.

20100621

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