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Velez v. New Jersey Department of Corrections

Superior Court of New Jersey, Appellate Division

November 13, 2013

MOSES VELEZ, Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 7, 2013

On appeal from the New Jersey Department of Corrections.

Moses Velez, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Roshan D. Shah, Deputy Attorney General, on the brief).

Before Judges Ashrafi and Leone.

PER CURIAM

Inmate Moses Velez appeals from disciplinary sanctions imposed upon him for possession of a cell phone and a phone charger while in the custody of the New Jersey Department of Corrections (DOC) at a halfway house. We affirm.

On January 24, 2012, a counselor at the halfway house saw Velez standing on a bunk bed replacing a ceiling tile. Believing that Velez had concealed something in the ceiling, the counselor ordered the other occupants of the room to step out and Velez to come off the bed. Velez's response was to request that the counselor close the door so that they could talk privately. The counselor refused and turned his attention to finding assistance. Velez then reached into the ceiling, removed something, and came off the bed. The counselor saw "a black color wire (phone charger) wrapped with some kind of gadget that looked like a cell phone." He ordered Velez to hand over the items, but Velez walked out of the room and gave the items to another inmate, speaking in Spanish. The other inmate went into a bathroom and flushed the items down a toilet.

Velez was immediately transferred from the halfway house back to a prison. He received written notice of the charges the next day, January 25, 2012: disciplinary infractions for possession of an electronic communication device, a violation of Prohibited Act .009A, and refusing to obey an order, a violation of Prohibited Act .256. A hearing was conducted on January 31, 2012. At the hearing, Velez was assisted by counsel substitute. He presented a statement in his defense to the effect that he did not possess a cell phone. According to the hearing officer's report, Velez was offered the opportunity to confront adverse witnesses and to present any other witnesses of his own but declined to do so.

The hearing officer reviewed the supervising officer's disciplinary report and the incident report completed by the counselor. He also reviewed incident reports from three weeks earlier when Velez had flushed a wire phone charger down a toilet and then a cell phone had been confiscated from a concealed place in his clothing. The hearing officer found the incident reports in evidence to be specific and credible but found Velez's general denial not to be credible. He noted that a cell phone or other electronic device had not been recovered on January 24 but found it plausible that Velez handed the items to another inmate who then flushed them down a toilet. The other inmate was also charged and was separately found guilty of disciplinary infractions.

The hearing officer found substantial evidence supporting the charges and found Velez guilty of the two charges. He imposed sanctions totaling twenty-five days of detention, 180 days of administrative segregation, and 120 days loss of commutation time.

Velez filed an administrative appeal. He requested that the sanctions be modified because of a lack of physical evidence of his guilt and his clean prior disciplinary record. The administrative officer upheld the finding of guilt but reduced the sanctions to ten days of detention and 120-day loss of commutation time.

On appeal before us, Velez argues that the DOC did not conduct an adequate investigation of the incident, in particular, that it failed to search for and retrieve the alleged phone and charger from the toilet. He contends there was insufficient evidence to find him guilty of the charges, the disciplinary report was improperly prepared by an officer who did not witness the incident, and he was ...


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