On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 30, 2011 -
Before Judges Payne and Messano.
Arias Espedito is an inmate at the East Jersey State Prison. On August 5, 2010, he was charged with a violation of N.J.A.C. 10A:4-4.1(a), prohibited act *.005, "threatening another with bodily harm or with any offense against his or her person or his or her property." At the disciplinary hearing convened on August 9, the hearing officer amended the charge to a violation of prohibited act .709, "failure to comply with a written rule or regulation of the correctional facility." Espedito was found guilty and the sanctions imposed included the loss of recreation privileges for 10 days and a referral to central classification for a change in prison employment. Espedito's administrative appeal was denied by the assistant superintendent of the facility. This appeal followed.
Espedito raises the following points on appeal:
THE APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE THE FINDING OF GUILT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE PURSUANT TO N.J.A.C. 10A:4-9.15 POINT 2 THE APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE HEARING OFFICER WAS ALLOWED TO BOTH AMEND THE CHARGE AND THEREAFTER ADJUDICATE THE DISCIPLINARY PROCEEDING We have considered these arguments in light of the record and applicable legal standards. We reverse.
The facts adduced before the hearing officer revealed that Espedito and another inmate, Sanchez, were working in the commissary when Senior Corrections Officer Kwesi T. Ramsey approached. Although initially speaking English, the inmates began to speak Spanish. Ramsey asked, "What did you say?"
Sanchez responded that he was not speaking to the officer, and, when Ramsey posed the question again, Sanchez said something in Spanish. Espedito responded in Spanish, and both inmates began laughing.
Sanchez then told Ramsey to "[g]et out of here before you get fucked up." The officer radioed for back-up assistance "due to the threatening tone of Sanchez and the threatening gesture of Arias [Espedito]."
Espedito was represented by counsel substitute at the disciplinary hearing. He called no witnesses and declined the opportunity for confrontation of adverse witnesses. Espedito supplied the following version of the events to the hearing officer:
I was working. The C/O said speak English. I thought he was playing[.] I usually shut up but that day we were speaking Spanish. ...