April 23, 2012
WILLIAM E. TORRES, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 February 29, 2012
Before Judges Sapp-Peterson and Ostrer.
William E. Torres is an inmate currently incarcerated at Northern State Prison in Rahway. He appeals from a final administrative decision imposing disciplinary sanctions stemming from findings of a hearing officer that he committed disciplinary infractions by violating prohibited acts, N.J.A.C. 10A:4-4.1(a) *.305, "lying, providing a false statement to a staff member"; N.J.A.C. 10A:4-4.1(a) *.402, "being in an unauthorized area"; and N.J.A.C. 10A:4-4.1(a) *.704, "perpetrating frauds, deceptions, confidence games, riots or escape plots." We affirm.
On May 5, 2010, Torres, who was serving a sixteen-year sentence for two counts of armed robbery, was housed at the Center for Education ("CUE-I"), a halfway house, and was scheduled to report to work at the Restaurant Depot ("RD") in Secaucus at 8:00 a.m. At approximately 5:15 p.m., a representative from CUE-I called RD to speak to Torres, but learned that he had not reported to work that day. Local police were contacted. Torres reported to CUE-I around 8:55 p.m. that evening. He was charged with escape the next day, but advised the Disciplinary Unit that he was in fact at work and would have RD provide his timecard. A disciplinary hearing was conducted on May 10, at which time the hearing officer found Torres not guilty of the escape charge, reasoning it was merely a "case of miscommunication."
Later, on May 10, the Department of Corrections (DOC) received correspondence from RD's manager stating that Torres had not worked on May 5. The letter also reported that an RD employee admitted covering for Torres's absence that day and enlisting the help of another employee, who manually entered Torres's presence at work on his timecard. Torres was reportedly visiting with his wife. When DOC contacted Torres's wife, she stated that Torres met her at a bus station, accompanied her to medical appointments she had that day, and then returned to her home.
Based upon the correspondence from the RD manager and the interview with Torres's wife, the underlying disciplinary charges were filed against Torres. Given the nature of the charges, he was granted the assistance of a counsel substitute. He offered no statement or any other evidence contradicting the letter from the RD manager or the statement made to the DOC investigator by his wife. The hearing officer found Torres guilty of the charges and recommended that Torres receive fifteen days in detention, 455 days in administrative segregation, and the loss of 425 days of commutation time on the basis that Torres's actions reflected a violation of trust for which he must be held accountable. Torres filed an administrative appeal seeking leniency, but the hearing officer's findings and the sanctions imposed were upheld. The present appeal followed.
On appeal, Torres contends:
IN PROVIDING A COUNSEL SUBSTITUTE [WHOSE] IDEA OF MOUNTING A LEGAL DEFENSE WAS NO COMMENT[,] THE DEPARTMENT OF CORRECTIONS VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION.
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF GUILTY OF N.J.A.C. 10A:4-4.1(a) *.704[,] PERPETRATING FRAUDS, DECEPTIONS, CONFIDENCE GAMES, RIOTS OR ESCAPE PLOTS[,] VIOLATING THE APPELLANT[']S DUE PROCESS RIGHTS TO BE FOUND GUILTY OF ANY INFRACTION ONLY WHEN THERE IS SUBSTANTIAL EVIDENCE THAT THE INMATE HAS COMMITTED A PROHIBITED ACT.
At the outset, we address Torres's claim of ineffective assistance of counsel substitute. Inmates charged with asterisk offenses have the "the right to request representation by a counsel substitute." N.J.A.C. 10A:4-9.12. Although this is not equivalent to the constitutional right to counsel, it is among the procedural safeguards to which inmates are entitled when subject to disciplinary procedures. Avant v. Clifford, 67 N.J. 496, 537 (1975). An inmate who receives assistance from a counsel-substitute who is not "sufficiently competent" has been effectively denied the due process protections established by the applicable regulations. Id. at 529. In this case, however, Torres never claimed ineffective assistance in his administrative appeal, and even if we are to consider this contention, he presents nothing in the form of certifications, for example, from prospective witnesses or any other evidence from which we could conclude that had he had the benefit of competent substitute counsel, the outcome of the proceedings would have been different. Thus, we reject his claim of ineffective assistance of counsel substitute.
Likewise, Torres's claim that there was insufficient evidence to support a finding of guilty of N.J.A.C. 10A:4-4.1(a) *.704 is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
The RD employee who admitted that Torres did not work on May 5 implicated himself in the deception. The employee reported that he believed Torres was with his wife, from which it could reasonably be inferred that Torres had been in communication with the employee and, at the very least, knew the employee would cover for him or planned, with the employee, to have the employee cover for him. Mrs. Torres's statement confirming that Torres was with her is additional evidence from which the hearing officer could reasonably find that Torres was not at work as scheduled on May 5, and that he was an active participant in the scheme to alter his timecard in an effort to deceive officials into believing that he was present at work when in fact he was not.
Our scope of review of administrative decisions is quite limited. We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are not to substitute our judgment for that of the agency, Brady v. Dep't of Pers., 149 N.J. 244, 264 (1997), nor substitute our fact-finding for that of the agency, Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide of the mark as to be manifestly mistaken." Ibid. Judged by these standards, we are satisfied there is substantial credible evidence in the record to support the agency decision and discern no basis for our intervention.
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