January 19, 2012
CLAUDIO GONZALES, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Messano and Espinosa.
Claudio Gonzales was convicted of aggravated sexual assault of a victim under thirteen years of age and is currently an inmate at the Adult Diagnositc and Treatment Center (ADTC). He appeals from the final decision of the Department of Corrections (DOC) that he committed prohibited act .013, unauthorized physical contact with any person, N.J.A.C. 10A:4-4.1(a).*fn1
Gonzales argues that there was insufficient evidence to support this finding and that procedural deficiencies deprived him of his due process rights. We affirm.
Our review of the DOC's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).
The relevant events here occurred at a Family Day at ADTC held on June 16, 2010. Although he had no visitors, Gonzales attended, without authorization, and spent the day with the family of a fellow inmate, M.M. On the following day, M.M. reported that Gonzales had touched his nine-year-old niece, A., during Family Day. Gonzales was interviewed and provided a written statement that included the following:
I took the kids to get ice cream and fruit cups and on the way back I was guiding the kids back to the table. But they both had their hands full so I held ones [sic] hand and the other one I put my hand on her shoulder to guide her back to the tables but in the process of my hand on [A.'s] shoulder I may have accidentally brushed her chest.
The other time I walked both the kids to see there [sic] friend a few tables down then came back holding their hands both way[s].
N.J.A.C. 10A:4-4.1(a) defines prohibited act .013 as "unauthorized physical contact with any person, such as, but not limited to, physical contact not initiated by a staff member, volunteer or visitor[.]" Gonzales's admission that he held hands with the children provides sufficient credible evidence to support the DOC's decision. His contention that the physical contact was initiated by the minors is unpersuasive and unsupported by the admissions made in his written statement.
Gonzales also argues that he was denied constitutional rights because he was not given Miranda*fn2 warnings before he was interviewed. This argument is refuted by evidence in the record that shows he was provided a written statement of the Miranda warnings in Spanish and English, which he initialed and signed, at 4:15 p.m. on June 17, 2010. His written statement on that date notes the time from initiation to completion as 4:47 p.m. to 5:03 p.m. Therefore, this argument lacks any merit.
For prohibited act .013, the hearing officer imposed sanctions of fifteen days' detention, sixty days' loss of commutation credit and ninety days' administrative segregation. On the charge of .402, which Gonzales has not appealed, he was sanctioned to ten days' detention, thirty-five days' loss of recreational privileges, sixty days' loss of commutation time and thirty days' loss of visitation privileges. He argues that the sanctions for the two infractions should run concurrently rather than consecutively. However, the decision to have the sanctions run consecutively was authorized by N.J.A.C. 10A:4-5.3(a)(1), which states: If an inmate is found guilty of more than one disciplinary charge arising out of one incident, the inmate may receive up to 15 calendar days for each disciplinary charge provided that the total time to be served in the Disciplinary Detention does not exceed 30 calendar days.
Therefore, this argument lacks merit as well.