LUIS CAMINO 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NOT FOR PUBLICATION WITHOUT THE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-1124-05T11124-05T1

LUIS CAMINO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

 

Submitted August 9, 2006 - Decided August 21, 2006

Before Judges Kestin and Winkelstein.

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

Luis Camino, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Luis Camino is incarcerated at the New Jersey State Prison in Trenton for various drug convictions. He appeals from an October 5, 2005 final decision of the New Jersey Department of Corrections finding him guilty of committing prohibited act *.004, fighting with another person, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. The agency imposed fifteen days of detention, 180 days of administrative segregation, and 180 of days loss of commutation credits on the *.004 charge, and on the *.306 charge, the agency imposed consecutive fifteen days of detention, 365 days of administrative segregation and 180 days of loss of recreation privileges. On appeal, appellant raises the following issues:

POINT I

THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL CREDIBLE EVIDENCE AND IN THE INTEREST OF JUSTICE SHOULD BE VACATED.

. . . .

POINT II

THE HEARING OFFICER'S DECISION FAILED TO ARTICULATE FACTS ESTABLISHING APPELLANT'S GUILT.

POINT III

THE HEARING WAS CONDUCTED IN VIOLATION OF NUMEROUS CODES OF TITLE 10A WHICH GOVERNS THE DISCIPLINARY PROCESS.

POINT IV

APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHEN HE WAS DENIED THE OPPORTUNITY TO PRESENT DOCUMENTARY EVIDENCE.

We have reviewed the record in detail and have considered appellant's arguments in light of the existing law. We find his arguments to be without merit and affirm.

The charges arose out of an altercation that took place on August 28, 2005, in which approximately sixteen inmates attacked inmate Vincent Abruzia on the prison recreation deck. The assault was videotaped. The charges were delivered to appellant by a corrections officer the day after the assault. The first adjudication hearing was scheduled for August 31, 2005, but was subsequently adjourned on multiple occasions for various reasons, including: giving appellant's counsel substitute additional time to prepare, providing the hearing officer and the corrections officers an opportunity to review the videotapes, and furnishing the hearing officer the opportunity to address appellant's request for a polygraph examination.

The hearing officer reviewed the videotapes of the incident, but did not rely on his own observations because he did "not know the faces of any of the people involved in [the] event." He also denied appellant's request to view the videotapes. He did so to maintain the security of the cameras to prevent inmates from learning the camera's location, rotation and/or ability to focus on various areas in the facility.

At the hearing, appellant was represented by a counsel substitute. Appellant denied involvement in the assault, stating that he "was playing basketball with [inmate] Ortiz" at the time of the altercation. A corrections officer had interviewed Abruzia, who denied that appellant was involved in the assault against him; Abruzia refused, however, to submit a written statement to that effect. Appellant had the opportunity to confront and cross-examine adverse witnesses, but declined to do so. Prison officials denied his request for a polygraph examination.

Included in the evidence considered by the hearing officer was a written report from Corrections Officer A. Diaz. Diaz indicated that he observed appellant punch and kick Abruzia. In addition, Sergeant Aliamo and Officers Nance and Degner reviewed the videotape of the assault and identified appellant as one of the inmates involved.

Upon review of all of the evidence, the hearing officer made the following findings:

Officer reports he observed [appellant] punch/kick [inmate] Abruzia. A second officer reports he observed [appellant] punch/kick [inmate] Abruzia. The officers were asked to re-review the videotapes to make sure what they observed the first time was correct. [Inmate] Abruzia reports that the [appellant] had nothing to do with it. [I]n this case I will side with the officers. They reviewed the tapes. The second time confirming what they saw the first time.

[Counsel substitute] reports he wants to review the videotape. [Hearing officer] notes that this cannot be allowed. You cannot allow an [inmate] to learn the locations of the cameras. You cannot allow the [inmate] to learn how well the cameras zoom, quality of picture, how far they rotate, any blind spots if any. The idea is for the [inmate] to know they are there so they know whatever happens will be recorded.

[Counsel substitute] makes an issue of the hearing being postponed. It took time for the [inmate]'s request for polygraph (twice). [Counsel substitute] wanted time to review. Officers needed more time to re-review the tapes, etc. All relied on to determine guilt.

We are satisfied that the hearing officer's findings could reasonably have been reached on sufficient evidence in the record. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Corrections Officer Diaz witnessed appellant punch and kick inmate Abruzia. Other corrections officers identified appellant from a review of the videotapes. Simply stated, the agency's decision was neither arbitrary nor capricious nor unsupportable by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). That there was additional evidence to support appellant's denial of his involvement in the fight is not dispositive. As an appellate court, we defer to the agency decision so long as sufficient credible evidence in the record exists to support the agency's findings. See Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004); In re Taylor, 158 N.J. 644, 657 (1999). That is the case here. The evidence was sufficient to support the agency's findings that appellant assaulted Abruzia.

We also conclude that appellant was adjudicated after all procedural safeguards to which he was entitled were followed. The failure to afford him a polygraph examination was not an abuse of discretion, and did not compromise the fundamental fairness of the disciplinary proceedings. See Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 23-26 (App. Div. 2005); Johnson v. N.J. Dep't of Corrs., 298 N.J. Super. 79, 83 (App. Div. 1997). Appellant was advised of his immunity rights and was given an opportunity to call witnesses and cross-examine the agency's witnesses. He was aware of the charges against him prior to the hearing, and the agency's reasons for adjourning the hearing were reasonable and entitled to our deference.

Appellant's remaining arguments are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(D)&(E).

Affirmed.

 

(continued)

(continued)

6

A-1124-05T1

 

August 21, 2006