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Nazario v. New Jersey Department of Corrections

Superior Court of New Jersey, Appellate Division

December 19, 2013

GEORGE NAZARIO, Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 11, 2013

On appeal from the New Jersey Department of Corrections.

George Nazario, appellant pro se.

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

Before Judges Fuentes and Haas.

PER CURIAM

Appellant George Nazario, an inmate currently in the custody of the Department of Corrections (DOC), appeals from the DOC's July 31, 2012 decision finding him guilty of violating *.101, escape, and the DOC's August 7, 2012 decision finding him guilty of violating *.204, use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff. We affirm.

On July 25, 2012, Nazario was residing at Clinton House, a half-way house in the community through which he was permitted to work at a manufacturing facility in Trenton. At approximately 2:05 p.m., two DOC case managers conducted a site check at the facility and learned that Nazario had signed himself out of work at 12:00 p.m. after advising his employer that he had "a very important appointment" at the Garden State Youth Correctional Facility (Garden State). The case managers advised staff at Garden State that Nazario had left his work site without permission and an "escape notification" was issued.

Nazario returned to Clinton House at 2:55 p.m. When confronted, Nazario admitted he left the work site without permission in order to visit his sister and niece at the hospital. Nazario was charged with escape and transported to Garden State. At approximately 6:00 p.m., DOC staff ordered Nazario to submit to a drug test. The laboratory results obtained from the State Department of Health were positive for opiates. Nazario was then charged with use of prohibited drugs.[1]

Nazario pled not guilty to both charges and the DOC conducted a disciplinary hearing for each separate charge. Nazario conceded he left the work site without first securing or requesting permission to do so from the DOC, or even informing DOC staff of the alleged family emergency. However, he asserted he had no desire to escape because he always intended to return to Clinton House. Defendant argued that the use of prohibited drugs charge should be dismissed because the sergeant had originally stated that the charge was based upon his use of THC50, rather than opiates.

Based upon the foregoing facts developed in the hearing record, the hearing officers found Nazario guilty of both charges. On the charge of escape, Hearing Officer Jantz sanctioned Nazario by imposing 15 days' detention with credit for time served, 180 days' administrative segregation, 180 days' loss of commutation time, and 30 days' loss of recreation privileges. Nazario filed an administrative appeal concerning the escape charge and, on July 31, 2012, Associate Administrator D'Ilio upheld the hearing officer's findings and sanctions.

With regard to the use of prohibited drugs charge, Hearing Officer DiBenedetto sanctioned Nazario with 15 days' detention with credit for time served, 180 days' administrative segregation, 180 days' loss of commutation time, and 365 days' urine monitoring. Following an administrative appeal, Associate Administrator D'Ilio issued a final decision on August 7, 2012, upholding the hearing officer's findings and sanctions, with the exception of the 15 days' detention, which was rescinded. This appeal followed.

On appeal, Nazario argues there was insufficient evidence in the record to support the hearing officer's finding of guilt on the escape charge and that his due process rights were violated because the use of prohibited drugs charge initially stated his urine sample was positive for THC50. We have considered Nazario's arguments in light of the record and applicable legal principles. We conclude they are without sufficient ...


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