September 23, 2011
ARIAS ESPEDITO, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. I just go to work [and] that's it.
Espedito sought leniency because "[h]e didn't do anything."
The hearing officer concluded that Espedito "admitted that the C/O had told them to speak English [and] both of them kept speaking Spanish as a joke." She further concluded that Espedito "admitted [that] he can speak English [and] that the C/O had told them this previously to alleviate any problems." She amended the disciplinary charge and found Espedito guilty of failing to comply with a written rule or regulation.
Initially, we reject Espedito's second point on appeal. N.J.A.C. 10A:4-9.16(a) provides:
Whenever it becomes apparent at a disciplinary hearing that an incorrect prohibited act is cited in the disciplinary report but that the inmate may have committed another prohibited act, the Adjustment Committee or Disciplinary Hearing Officer shall modify the charge. The inmate shall be given the option of a 24-hour postponement to prepare his or her defense against the new charge or have the new charge adjudicated at that time.
The record reveals that Espedito's counsel substitute waived the opportunity to postpone the hearing.
Turning to the substantive challenge raised in Point 1 of Espedito's appeal, we recognize some basic tenets. Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (second alteration in original) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We have noted in the past that the Legislature has provided prison authorities with broad discretion in all matters regarding the administration of the facility, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).
"[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). We are not "relegated to a mere rubber-stamp of agency action," but rather we must "engage in a careful and principled consideration of the agency record and findings." Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quotation and citations omitted).
DOC's regulations require any "finding of guilt at a disciplinary hearing [ ] be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). "Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quotations omitted).
Espedito was adjudicated guilty of having failed to comply with a written rule or regulation of the prison. The specific "written rule" was never cited by the hearing officer. However, we assume a written rule exists that requires inmates to heed the commands of the attending corrections officers.
The hearing officer concluded that Ramsey ordered Espedito and Sanchez to "speak English." In fact, the reports filed by Ramsey and the other officers, and upon which the hearing officer based her findings, are bereft of any evidence that Ramsey issued such an order. The only evidence that such an "order" was issued is Espedito's own statement, in which he claimed "[t]he C/O said speak English." It is clear from Ramsey's report that he did not think Espedito had violated an express order because he took action only when Sanchez allegedly issued his threat. Indeed, that is what formed the basis of the disciplinary charge in the first instance.
The hearing officer also concluded that Espedito "admitted [that] he can speak English [and] that the C/O had told them this previously to alleviate any problems." However, there is no evidence in the record at all to support this conclusion.
In short, we are convinced the finding that Espedito failed to comply with a written rule or regulation of the prison is not supported by "substantial credible evidence in the record as a whole." Ramirez, 382 N.J. Super. at 23 (quotation omitted). We therefore reverse.
© 1992-2011 VersusLaw Inc.