March 12, 2012
RICARDO PADILLA, A/K/A RICARDO SAMOZA AND RICARDO SOMOZA, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 28, 2012
Before Judges Payne and Simonelli.
Appellant Ricardo Padilla*fn1 appeals from the September 22, 2010 final agency decision of respondent New Jersey Department of Corrections (DOC) upholding the decision of a hearing officer to impose disciplinary sanctions for committing prohibited acts *.003, assaulting any person with a weapon, *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, and *.803/.001, attempting to commit any of the above acts preceded by an asterisk, aiding another person to commit any such act or making plans to commit such acts shall be considered the same as commission of the act itself/killing, in violation of N.J.A.C. 10A:4-4.1. We affirm.
At approximately 2:10 p.m. on August 3, 2010, two inmates, who are members of the security threat group known as the "Latin Kings," assaulted inmate E.S.,*fn2 a former Latin Kings member, by cutting him in the face with homemade weapons. E.S. sustained a seven-inch laceration on the left side of his face that began above his ear, went diagonally down his cheek to his jaw line, approximately one inch above his carotid artery, and ended just below his ear near his lips. E.S. also sustained an approximately three-inch laceration that began near his left eyebrow and ran horizontally into his scalp line. He was transported by ambulance from NSP to a local hospital emergency room, where he received over one hundred stitches to close his wounds.
The assault occurred in an area known as the "Fox Yard" where other inmates were present. Several Corrections Officers responded to the yard after the assault and ordered all inmates to the ground. They strip searched all inmates present, and recovered two toothbrushes melted together with two razors, a separate razor, and a rag with drops of blood during a search of the yard. One of the weapons and the rag were found near the "dip bar/pull-up area" on the west side of Fox Yard.
Senior Investigator Robinson (SI Robinson) of the Special Investigations Division commenced an investigation on August 3, 2010, with an interview of E.S. at the emergency room. E.S. told SI Robinson that the two attackers tried to kill him because the Latin Kings believed that (1) he had testified against other Latin Kings members and received a lighter sentence; (2) he had assaulted a Latin Kings leader in a different correctional facility; and (3) he had renounced his gang affiliation. E.S. also reported that "he has been having problems with the Latin Kings in every correctional facility he goes to." He identified Padilla, a Latin Kings member, as one of his attackers.*fn3 E.S. gave a five-page written statement on August 4, 2010, which confirmed what he had reported to SI Robinson.
After E.S. identified Padilla as one of his attackers, Corrections Sergeant Chanda responded to the prison and ordered all inmates back into their cells so that he and other officers could securely escort Padilla to the Administrative Close Segregation Unit (ACSU). Padilla was placed in pre-hearing detention.
SI Robinson continued his investigation, and interviewed several Corrections Officers who had responded to the assault. In an August 6, 2010 written statement, Senior Corrections Officer (SCO) Johnson confirmed that Padilla was in the Fox Yard during the strip search. In an August 9, 2010 written statement, SCO Bagley confirmed that Padilla was in the Fox Yard by the handball court just prior to the assault. In an August 9, 2010 written statement, Corrections Sergeant Kerner confirmed that Padilla was part of the last two groups of inmates to be strip searched, and Padilla had asked the officer if he could pick up his t-shirt, which was on the ground by the "dip bar."
In an August 13, 2010 written statement, SCO Ortiz confirmed that Padilla "was very nervous" when she saw him in the Fox Yard. Later that day, she assisted Sergeant Chanda in escorting Padilla to the ACSU. While handcuffing Padilla, she asked him if he had anything to do with the assault. Padilla shrugged his shoulders and said, "It's all part of the game Miss Ortiz. It is what it is[;] this is Northern State."
SI Robinson concluded his investigation on August 13, 2010, and determined that Padilla had attempted to kill E.S. Padilla was served with the disciplinary reports on August 14, 2010. As Hearing Officer Oszvart (HO Oszvart) subsequently noted in his written decision, the nature and extent of the investigation of this very serious incident was the reason that Padilla was not served with the disciplinary charges within seventy-two hours of his placement in pre-hearing detention.
The hearing occurred on September 14, 2010.*fn4 Padilla pled not guilty, requested, and was granted, substitute counsel, requested, and was denied, a polygraph for himself and E.S. and the opportunity to cross-examine E.S., and submitted a written statement and four witness statements in his defense. HO Oszvart explained in his written decision that he had denied Padilla's request to cross-examine E.S. based on gang-related concerns for NSP's security and E.S.'s safety and well-being. HO Oszvart also noted that permitting Padilla to confront E.S. would force E.S. to relive a very traumatic event.
HO Oszvart found that Padilla's witness statements did not exonerate him because the witnesses gave different versions of where Padilla was and what he was doing at the time of the aassault, and they did not discredit E.S.'s written statement. HO Oszvart also found E.S.'s written statement was credible, stating that
[E.S.'s] statement is provided at great risk to his personal safety. By stating I/M Padilla did in fact cut/slice him, he has now placed a large target on himself; he has violated the prison code of telling on a fellow I/M; whatever problem he had before about being a snitch, he has just confirmed to the entire I/M population that he has provided information against a fellow I/M. By telling the truth, he must spend the rest of his incarceration in a special unit (protective custody) to ensure his safety from other inmates. He can never return to general population, never receive consideration for reduce[d] custody, transfer to a less secure institution, enjoy programs provided to general population inmates.
HO Oszvart found Padilla guilty of all charges, concluding that Padilla inflicted a serious injury on [E.S.]; I/M Padilla['s] action caused a code to be called, [E.S.] had to be taken to an outside area hospital (via 911 call). [E.S.] is lucky to be alive. Please note area of wound/attack/cut/slice; a fraction of an inch deeper/higher/lower would indeed have a more serious consequence.
As a sanction, he recommended a loss of 365 days commutation time for each of the charges, for a total of 1095 days.
On September 16, 2010, Padilla appealed HO Oszvart's decision. On September 22, 2010, the Assistant Superintendent upheld the decision and recommended sanctions, concluding there was compliance with the applicable procedural safeguards for inmate discipline, and HO Oszvart's decision was based on substantial evidence. This appeal followed.
On appeal, Padilla contends that (1) the DOC violated N.J.A.C. 10A:4-9.2, -9.5(a), -9.6, and -9.9(a); (2) the denial of his request to confront E.S. denied him a fair hearing, and HO Oszvart's reasons for the denial do not comply with N.J.A.C. 10A:4-9.14(a) and (b); and (3) the decision was not based on substantial evidence in the record. We reject these contentions.
First, even if the DOC had violated the time periods in N.J.A.C. 10A:4-9.2 and 9.5(a), which it did not, dismissal of the charges against Padilla was not mandated. See N.J.A.C. 10A:4-9.9(a) ("[t]he failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge"). In addition, Padilla suffered no prejudice by the delay in serving the disciplinary reports. Despite the delay, he had more than ample time to prepare for the hearing that took place a month after the DOC served him.
Second, HO Oszvart properly denied Padilla's request to cross-examine E.S. The due process rights of New Jersey inmates include a limited right to confront and cross-examine adverse witnesses in appropriate cases. Avant v. Clifford, 67 N.J. 496, 529-30 (1975). "[I]f requested," the inmate shall be afforded the opportunity to confront and cross-examine the accuser and/or the State's witnesses, where the hearing officer "deems it necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved." N.J.A.C. 10A:4-9.14(a); Avant, supra, 67 N.J. at 530.
The hearing officer has broad discretion to deny a request for confrontation and cross-examination, N.J.S.A. 10A:4-9.14(a). The hearing officer may deny a request "when confrontation and cross-examination is determined by the [hearing officer] . . . to be . . . [u]nduly hazardous to the correctional facility/unit safety, security, orderly operations, or goals," N.J.A.C. 10A:4-9.14(b)1; McDonald v. Pinchak, 139 N.J. 188, 197 (1995), or when confrontation and cross-examination of the individuals requested may subject them to possible physical retaliation, Negron v. N.J. Dep't of Corr., 220 N.J. Super. 425, 430 (App. Div. 1987). "'[T]he reasons for such denial [must] be entered in the record and made available to the inmate.'" McDonald, supra, 139 N.J. at 198 (quoting Avant, supra, 67 N.J. at 532).
The incident in this case was a gang-related assault apparently committed in retaliation for E.S.'s testimony against other gang members and assault of a gang leader. The assault of E.S. occurred inside NJSP with the use of homemade weapons, and resulted in serious injuries to E.S. The gang-related threat to the security of the correctional facility and the gang-related concerns for E.S.'s safety and possible future physical retaliation were sufficient reasons to deny Padilla's request to confront and cross-examine E.S. HO Oszvart expressed these reasons in his written decision.
Finally, we are satisfied that the DOC's decision is supported by substantial credible evidence in the record as a whole, and is neither arbitrary, capricious, nor unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005).