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Degregoda v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 1, 2010

RICARDO DEGREGODA, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 June 1, 2010

Before Judges Lisa and Alvarez.

Appellant, Ricardo Degregoda, a New Jersey State Prison inmate, appeals from a final decision of the Department of Corrections entered on October 28, 2008 adjudicating him guilty of committing prohibited act *.009, misuse or possession of prohibited electronic equipment, in violation of N.J.A.C. 10A:4-4.1(a). Appellant received sanctions of fifteen days detention, 365 days loss of commutation credit, 365 days administrative segregation, thirty days loss of recreation privileges, and permanent loss of contact visits.

Appellant argues that the decision should be reversed because (1) he was denied due process because the hearing officer denied his postponement request, and (2) the decision is not supported by substantial credible evidence in the record. We reject these arguments and affirm.

In October 2008, appellant was transferred from Northern State Prison (NSP) to New Jersey State Prison (NJSP). On October 12, 2008, appellant's property arrived at NJSP. After x-ray examination of his property, a cell phone charger was discovered among his possessions. It was hidden inside a Ramen noodle soup package. Appellant was charged on that date with the *.009 offense. He was immediately placed in pre-hearing detention, the charges were served upon him, and counsel substitute was assigned. The following day, Monday, October 13, 2008, was Columbus Day, a holiday. Therefore, the hearing was scheduled for the following day, Tuesday, October 14, 2008.

Appellant requested a postponement to enable him to conduct further investigation. In particular, he said he wished to obtain store receipts from the commissary at NSP, which he contended would reveal that he had not purchased any Ramen noodle soup. He further wished to obtain telephone records from NSP to show that he regularly used the institutional telephone to call his family members, thus suggesting that he had no need for a cell phone and, by extension, a cell phone charger. The hearing officer denied the postponement request, deeming the proposed additional evidence immaterial.

Appellant chose not to call any witnesses and declined the opportunity to confront adverse witnesses. He and his counsel substitute asserted the right to make statements, which were general denials of the charge.

The hearing officer found the evidence sufficient to sustain the charge and found appellant guilty. Appellant filed an administrative appeal. The Administrator rejected the appeal, finding that the hearing officer's determination was supported by substantial credible evidence. Thus, the final agency decision upheld the hearing officer's decision. This appeal followed.

We will not interfere with an agency's decision unless it is arbitrary, capricious, or unreasonable or unsupported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We have reviewed the record and we are satisfied that the reports relied upon by the hearing officer and the administrator provided the required "substantial" evidence to support the disciplinary violation against appellant. See R. 2:11-3(e)(1)(D); McDonald v. Pinchak, 139 N.J. 188, 195 (1995); N.J.A.C. 10A:4-9.15(a).

We reject appellant's argument that had the proffered evidence from NSP been collected and presented it would have sufficiently undermined the evidence presented against him. He argues that the evidence was important because he was not permitted to pack his own personal belongings at NSP, but they were packed for him by corrections officers, and because he had a cellmate at NSP. Thus, the proffered evidence would have made it more likely to establish his defense that the cell phone charger was not his, either because it belonged to his NSP cellmate or, perhaps, one of the other six prisoners who were transferred with him to NJSP. We agree with the hearing officer that the proffered evidence, even if it existed and was presented, would not have been material to the outcome. Whether appellant purchased Ramen noodle soup or not, he could have obtained an empty package from other sources and used it to conceal the cell phone charger with his personal belongings. The suggestion that appellant's cellmate's belongings might have been mixed with his is pure speculation. And, appellant's use of the institutional telephone at NSP would not negate his potential possession of a cell phone or cell phone charger.

We are further satisfied from our review of the record that the disciplinary proceedings were conducted in accordance with all applicable due process requirements. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Appellant's contention that he was denied the required twenty-four-hour preparation time with his counsel substitute prior to the hearing is belied by the record.

Any additional arguments raised by appellant not specifically discussed in this opinion lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20100701

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