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Brian Benedik v. New Jersey Department of Corrections

July 23, 2012


On appeal from the New Jersey Department of Corrections.

Per curiam.


Submitted July 17, 2012

Before Judges Sabatino and Kennedy.

Brian Benedik, an inmate housed at the Adult Diagnostic and Treatment Center ("ADTC"), appeals a September 11, 2011 final agency decision of the Department of Corrections imposing disciplinary sanctions upon him. The Department sustained an ADTC hearing officer's findings that appellant had committed prohibited acts including *.005 (threatening another person with bodily harm or with any offense against his or her person); .256 (refusing to obey an order of a staff member); and .402 (being in an unauthorized area), all in violation of N.J.A.C. 10A:4-4.1(a). We likewise affirm those findings, and the disciplinary sanctions that the Department imposed.

The three infractions arose out of an incident at the ADTC involving appellant and Senior Corrections Officer Vincenzo Billero on July 21, 2011. That morning, Officer Billero saw appellant leave a classroom and walk down the corridor. Billero stopped appellant and asked him where he was going. Appellant stated that he was headed to the prison's law library.

Believing that appellant lacked permission to be out in the corridor, Billero ordered him to return to the classroom. Appellant defied the order. According to the officer, appellant instead approached him, clenching his hands and angrily proclaiming, "Billero, you need to stop f***king with me."

A loud and heated argument ensued, which was observed by Sergeant Anthony DeVito, who had just emerged from a nearby office. After seeing appellant acting belligerently in close proximity to Billero's face, DeVito intervened and placed appellant in handcuffs.

Appellant was then charged with the three previously-noted disciplinary infractions. After several postponements, a hearing was conducted on September 9, 2011. Appellant, who was assisted by a counsel-substitute, pled not guilty to the charges. Appellant contended that he simply had been walking towards Officer Billero to request permission to enter the library. He also maintained that his hands had not been clenched, and that he had been holding a book.

Appellant requested and was provided with written statements from Thomas Piteo, the teacher in the classroom he had left before encountering Officer Billero, and from the instructor who had been supervising the law library, DeSean Moore.*fn1 In his statement, Piteo related that appellant had requested permission to go to the law library. Piteo had acceded to that request, provided that appellant check with the first floor officer on duty. Piteo did not see the interaction between appellant and Billero in the hallway, although he did hear yelling.*fn2 In his own statement, Moore simply noted that he had not been present when the incident occurred.

After considering these statements, as well as the statements of Officer Billero, Sergeant DeVito, various other reports, and the responses to certain written questions posed by appellant, the hearing officer found appellant guilty of all three charged infractions. In her written rulings, the hearing officer adopted Billero's account that appellant had disobeyed Billero's repeated orders to return to the classroom and had threatened him. The hearing officer further noted that appellant's claim that he had been holding a book in the hallway was uncorroborated, and, moreover, that his supposed possession of a book did not disprove that he had threatened Billero. She added that Billero "had no reason to pick out this inmate or lie[.]"

The hearing officer imposed the following sanctions. For the *.005 violation (threatening), appellant received 15 days of detention, 365 days of administrative segregation, a 365-day reduction of commutation time, and a 35-day loss of recreation privileges. For the .256 violation (disobeying an order), appellant received 15 days of detention, 90 days of administrative segregation, and a 60-day loss of commutation time, all consecutive to the sanctions imposed on the *.005 violation. Lastly, for the .402 violation (being in an unauthorized area), appellant received another 60 consecutive days of lost commutation time, an additional 90 consecutive days of administrative segregation, and a 15-day loss of recreation privileges.

Appellant administratively appealed the hearing officer's decision, and Assistant Superintendent Robert Chetirkin upheld the ruling. Appellant then appealed the final agency decision to this court.

In his brief and reply brief, appellant variously contends that the hearing officer was biased, that her findings of guilt were not supported by the evidence and lacked sufficient reasons, that the ADTC administrator unfairly denied his request for a polygraph, and that, ...

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