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Henry Lotero v. New Jersey Department of Corrections

September 18, 2012

HENRY LOTERO, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2012 -

Before Judges Harris and Hoffman.

Appellant Henry Lotero appeals from a final disciplinary disposition of the Department of Corrections (the Department) that found him guilty of committing prohibited act *.204, "use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff," in violation of N.J.A.C. 10A:4-4.1(a)(*.204). We affirm.

I.

On January 28, 2011, Lotero was an inmate housed at the Garden State Youth Correctional Facility (Garden State) in Yardville. On that date, he provided a urine specimen*fn1 to prison officials that proved, on February 10, 2011, to be positive for the presence of a THC compound found in marijuana.

Lotero was immediately served with disciplinary charges, accusing him of prohibited act *.204. He pled not guilty. The first hearing date was scheduled for February 14, 2010. After being provided a counsel substitute, Lotero declined to confront or cross-examine any witnesses, but testified that he turned himself in to prison officials on January 3, 2011, and had "smoked while on the streets, not while in jail."

The hearing officer considered all of the available evidence and concluded as follows:

Prior to starting the drug program [Lotero] was ordered to void a urine . . . . [T]he urine test tested positive for THC. No evidence to discredit the evidence. All relied on to determine guilt.

Sanctions of fifteen days detention, 180 days of administrative segregation, 180 days loss of commutation time, 180 days urine monitoring, and permanent loss of contact visitation rights were imposed.

Lotero filed an administrative appeal, in which he argued that the hearing officer had misinterpreted the facts:

I was smoking on the street, NOT in jail. I turned myself in on January 3, 2011. I was tested 1/28/11. I was still dirty from the streets. They found small amounts anyway, by now I should be clean.

The Assistant Administrator of Garden State upheld the hearing officer's determination explaining, "[t]he timeframe you cite is enough for any street use of drugs to have ...


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