DANIEL DELGADO v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1356-05T21356-05T2

DANIEL DELGADO,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

 

Submitted June 7, 2006 - Decided June 27, 2006

 
Before Judges Winkelstein and Sapp-Peterson.

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

Daniel Delgado, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Daniel Delgado is incarcerated at the New Jersey State Prison in Trenton serving a forty-year sentence for convictions of murder and other offenses. He appeals from an October 6, 2005 final agency decision finding him guilty of committing prohibited act *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, and prohibited act *.004, fighting with another person. For the *.004 charge, the agency imposed fifteen days detention, 180 days administrative segregation, and 180 days loss of commutation time. For the *.306 charge, Delgado received fifteen days detention, 365 days of administrative segregation, and 180 days loss of recreation privileges. The sanctions for the two charges were consecutive.

On appeal, he 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 carefully considered appellant's arguments in light of the existing law. We find his arguments to be without merit and, accordingly, we affirm.

The charges arose out of an altercation that took place on August 28, 2005, in which approximately sixteen inmates attacked another inmate. Corrections officers viewed security videos of the altercation, compared the videos with the list of inmates who had signed into the area at the time of the incident where the fight occurred, and identified a number of inmates involved in the altercation, including appellant. While appellant, through his counsel substitute, denied that he was involved in the altercation, and other inmates claimed appellant was not involved in the fight, the hearing officer rejected that position and found him guilty of both charges. The hearing officer specifically found:

Officer [Diaz] reports he observed [Delgado] punch/kick [inmate] Abruzia. A second officer reports he observed this [inmate] punch/kick [inmate] Abruzia. The officers were asked to re-review the video tapes to make sure what was observed the first time was correct. [Inmate] Abruzia and four other [inmates] claim [Delgado] had nothing to do with this event. I am having a hard time accepting [that] these 5 [inmates] are telling the truth, with all these [inmates] punching/kicking Abruzia, how can he tell who is or who is not doing [sic] during this event. I have the word of 5 [inmates] who claim [one] thing vs. the officers viewing the tape twice, I will side with the officers.

[Counsel substitute] reports he wants to review the video tapes, [I] note this cannot be allow[ed], you cannot allow an [inmate] to learn the location of the cameras, you cannot allow the [inmate] to learn how well the cameras zoom, quality of pictures, how far they rotate, any blind spots if any, the idea is for the [inmates] to know they are there, so they know what ever happens will be recorded.

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

First, we 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, 20 (App. Div. 2005). Appellant could have called other witnesses, but instead relied on a single document where other inmates made verbal assertions but refused to submit written reports.

Next, we conclude that the findings of the hearing officer could reasonably have been reached on sufficient evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The evidence showed that Corrections Officer A. Diaz witnessed Delgado punch and kick inmate Abruzia and other corrections officers identified Delgado from the video. Simply put, the agency's decision was neither arbitrary nor capricious nor unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Appellant's arguments to the contrary, and the remaining issues raised in his brief, are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(D)&(E).

Affirmed.

 

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A-1356-05T2

June 27, 2006