February 21, 2012
RICHARD PULCINO, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 February 6, 2012
Before Judges Alvarez and Hoffman.
Richard Pulcino, a State Prison inmate, appeals from the February 15, 2011 final disciplinary decision of the Department of Corrections (DOC). For the reasons that follow, we affirm.
On June 12, 2008, Pulcino completed repair work on the radio of another inmate while working in the electronic repair shop at Trenton State Prison. According to a report of Corrections Officer Flowers, who was present in the shop during the repair, Pulcino's work on the radio lasted "longer than usual." Following the repair, the radio was inspected and found to have been altered to accommodate an appliance charger that could charge a cell phone. The shop teacher examined the radio and determined that either Pulcino completed the illegal alteration, or he observed it and failed to report it.
An investigation of the incident was conducted by Corrections Officer Moran on June 17, 2008, and Pulcino was charged with two "asterisk offenses": *.009, misuse or possession of electronic equipment; and *.704, perpetrating frauds. N.J.A.C. 10A:4-4.1. Pulcino was placed in pre-hearing detention. The next day, he was served written notice of the charges.
A hearing was held on June 20, 2008 before Hearing Officer Maniscalco. Because Pulcino was charged with asterisk offenses, Pulcino was entitled to, and did in fact utilize, a counsel substitute. N.J.A.C. 10A:4-9.12(a). The hearing officer reviewed the evidence, and amended the *.704 charge to a non-asterisk charge of .452, using any equipment which is not specifically authorized. He also dismissed the *.009 charge. Pulcino waived his right to twenty-four hour notice of the amended charge and pled guilty to the downgraded charge.
The hearing officer accepted the plea, found Pulcino guilty, and imposed the following sanctions: ten days' detention, with credit for time served; ninety days' administrative segregation, sixty days of which was suspended; and ninety days' loss of commutation credit, sixty days of which was suspended.
Pulcino claims to have filed an administrative appeal within twenty-four hours of the hearing. However, DOC had no record of an administrative appeal from Pulcino or a final agency determination regarding this charge. On January 22, 2009, Pulcino filed a notice of appeal with this court. On June 11, 2009, the appeal was remanded so that DOC could render a final decision. We did not retain jurisdiction. Pulcino then filed an administrative appeal on December 29, 2010. On February 15, 2011, Associate Administrator Holmes upheld the decision of the hearing officer. On March 1, 2011, Pulcino filed this appeal.
On appeal, Pulcino first claims that his conviction of a .452 violation, using any equipment which is not specifically authorized, should be vacated based upon the absence of substantial, credible evidence to support the conviction. This claim is without merit. To the contrary, the record fully supports the decision of the hearing officer. The evidence indicates that a radio which Pulcino had just repaired was inspected and found to have been improperly altered to allow it to accommodate a cell phone charger. Pulcino signed a repair slip indicating that appropriate repairs were made to the radio. Compelling evidence exists that Pulcino either altered the radio, or worked on it in its altered state without reporting the alteration.
Pulcino also claims his counsel substitute was ineffective because he advised Pulcino to plead to the amended charge rather than risk the significantly greater penalties accompanying one of the original asterisk charges. The record does not support this claim.
Finally, Pulcino claims a denial of due process based on the fact that DOC's Special Incident Report incorrectly listed the "date of incident" as "6/17/08." The record clearly establishes June 12, 2008, as the date of the offense. June 17, 2008, is the date the investigation was completed, and the date Pulcino was charged and placed in detention. Such a clerical error was inconsequential and did not deny Pulcino any procedural or substantive right.
An agency decision will be upheld unless it is arbitrary, capricious or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The decision under review meets that standard. Further, we are satisfied Pulcino was afforded all due process to which he was entitled. Avant v. Clifford, 67 N.J. 496, 521-22 (1975).
Accordingly, there is no basis to disturb the February 15, 2011 decision of Associate Administrator Holmes upholding the decision of the hearing officer.
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