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Carlos Cruz v. Department of Corrections

January 5, 2011

CARLOS CRUZ, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2010

Before Judges Carchman and Waugh.

Appellant Carlos Cruz appeals the final administrative action of respondent Department of Corrections (DOC), which imposed disciplinary sanctions pursuant to N.J.A.C. 10A:4-4.1. We affirm.

I.

We discern the following facts and procedural history from the record.

At the time the underlying events took place, Cruz was an inmate at Bayside State Prison in Leesburg. He is serving a term of sixteen years with a mandatory minimum term of five years, eleven months and twelve days, for convictions involving distribution of drugs and aggravated assault.

Cruz is appealing the Department's decision rendered on November 24, 2009, imposing disciplinary sanctions upon him for committing prohibited acts *.803/*.002, attempt to commit an assault on any person, and .013, unauthorized physical contact with any person, all in violation of N.J.A.C. 10A:4-4.1(a).

On the evening of November 17, 2009, Cruz was packing up his personal property in anticipation of his transfer to a different housing unit. An altercation took place between Cruz and his cellmate, David Evans. According to Evans, the dispute concerned cigarettes and involved only pushing. Senior Corrections Officers Roman and Ricci reported that they observed Cruz punch and shove Evans, who did not retaliate. When Cruz was told to stop, he approached Ricci and stated: "This is bullshit!" He clenched his fist around what appeared to be a lock and drew back his left arm. Ricci blocked Cruz's arm, after which Ricci and Roman then restrained Cruz until additional officers arrived.

Cruz was initially charged with committing prohibited act *.002, assault of any person, with respect to Evans. He was also charged with committing prohibited act *.803/*.003, attempt to assault any person with a weapon, with respect to his conduct toward Ricci.

The matters were heard together because they arose out of the same incident. The hearing officer modified the *.002 charge involving Evans to an .013 charge, unauthorized physical contact, and also modified the *.803/*.003 charge involving Ricci to an *.803/*.002 charge, attempt to assault any person. The first hearing was scheduled for November 20, 2009, but was postponed because the hearing officer requested a psychological evaluation of Cruz.

Cruz requested and received the assistance of counsel substitute. On November 23, 2009, Cruz pled guilty to both of the modified charges.

Based upon the testimony and evidence presented at the hearing, Cruz was found guilty of both charges. On the .013 charge involving Evans, Cruz was sanctioned ten days detention, with credit for time served, ninety days administrative segregation and sixty days loss of commutation time. On the *.803/*.002 charge involving Ricci, Cruz was sanctioned fifteen days detention, 365 days administrative ...


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