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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...