DONALD T. OLMO v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1952-04T11952-04T1

DONALD T. OLMO,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________________

 

Submitted: September 12, 2005 - Decided:

Before Judges A. A. Rodr guez and Yannotti.

On appeal from a final decision of the New Jersey Department of Corrections.

Donald T. Olmo, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Donald T. Olmo, an inmate at East Jersey State Prison, appeals from a finding by the Department of Corrections (DOC), that he committed prohibited act *.204 (use of any narcotic paraphernalia, drugs or intoxicants not prescribed for the individual by the medical or dental staff) N.J.A.C. 10A:4-4.1. Olmo also appeals and from the imposition of the following sanctions: 10 days detention, 180 days administrative segregation, 180 days loss of commutation time, 180 days urine monitoring, and permanent loss of contact visits. We affirm.

These are the operative facts. On October 25, 2004, while Olmo was at the Central Reception and Assignment Facility (CRAF) for permanent assignment, he was randomly selected to provide a urine sample. Olmo provided the sample and executed an authorization for the "release of [his] medical records pertaining to the medication(s) and dosage use by [him] in the last 30 days." The DOC tested the urine sample, which yielded a positive result for opiates. A different laboratory, run by the State Department of Health and Senior Services (DHSS), confirmed the positive result.

Olmo was served with the disciplinary report and notice of violation. At courtline, before Hearing Officer Don Wiater, Olmo declined both counsel substitute and the opportunity to cross-examine the witnesses against him. Olmo testified that before being sent to State Prison, while being held at the Camden County jail, he was in quarantine because he had fractured ribs. According to Olmo, "I was prescribed this drug by the doctor due to pain." According to Olmo, he used the alias "Alfredo Carreno." The hearing officer considered Olmo's testimony as well as several documents, including the DOC and DHSS laboratory reports. In response to Olmo's allegations, the DOC requested a review of his medical chart from the Camden County jail. It was determined that Olmo was not prescribed opiates in the Camden County jail nor at CRAF.

The hearing officer adjudicated Olmo guilty of the charge and imposed 15 days detention, 180 days administrative segregation, 180 days loss of commutation time, 180 days urine monitoring, and permanent loss of contact visits. Olmo appealed. The Assistant Superintendent at East Jersey Prison denied his appeal, but modified the sanction so that Olmo received only ten days detention, rather than fifteen. This constituted a final agency decision.

Olmo appeals contending:

THE ADMINISTRATIVE AGENCY DECISION WAS IN VIOLATION OF PROCEDURAL DUE PROCESS SAFEGUARDS AND/OR LACKS SUBSTANTIAL, CREDIBLE EVIDENCE FOR A GUILTY FINDING.

Specifically, he argues that his name was not selected from a "computer generated, randomly selected" list of inmates. He also argues that he was denied due process when the hearing officer denied his request for further investigation.

In response to the first argument, the DOC provided the certification of David Hardrick, an Executive Assistant at CRAF, and attached a computer-generated list. According to Hardrick, the names on the list were randomly selected.

We note that in the Face Sheet Report, where five aliases are listed for Olmo, there is no listing for "Alfredo Carreno." Moreover, the burden is on him, not the DOC to establish a defense to the charge.

Having carefully reviewed the items comprising the record on appeal and the arguments submitted by Olmo, we disagree with Olmo's arguments. We conclude that the disciplinary hearing comported with the necessary procedural due process requirements. See McDonald v. Pinchak, 139 N.J. 188, 198-99 (1995). We are also convinced that there was substantial evidence to support the adjudication. Avant v. Clifford, 67 N.J. 496, 530 (1975); R. 2:11-3(e)(1)(D). We are further satisfied that there is sufficient proof on the record to establish the chain of custody of the specimens provided by Olmo and tested by the DOC and laboratories.

 
Affirmed.

(continued)

(continued)

4

A-1952-04T1

September 20, 2005