ANIBAL ORTIZ 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NOT FOR PUBLICATION WITHOUT THE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-2116-05T32116-05T3

ANIBAL ORTIZ,

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.

Anibal Ortiz, appellant pro se.

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

PER CURIAM

Appellant Anibal Ortiz is incarcerated at the New Jersey State Prison in Trenton serving a four-year prison term for multiple drug convictions. He appeals from a September 26, 2005 final decision of the Department of Corrections that found him guilty of prohibited act *.004, fighting with another person, and *.306, conduct which disrupts or interferes with the security or orderly running of a correctional institution. The agency imposed a sanction of fifteen days of detention, 180 days of loss of commutation credits and 180 days of administrative segregation 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. In a written report, Corrections Officer A. Diaz indicated that he personally observed appellant assault Abruzia. Corrections Officers Degner and Nance, after watching videotapes of the altercation, confirmed that appellant was one of the inmates involved in the fight.

Appellant was placed in prehearing detention, provided with a copy of the charges against him, and advised of his immunity rights. He was afforded a counsel substitute. At the hearing, appellant stated, "I don't know nothing." His counsel substitute stated: "[Appellant] had nothing to do with [the assault]. He was standing on the wall. Officer's reports (second) conflict with the first." Appellant was provided an opportunity to call witnesses and cross-examine the agency's witnesses, but declined to do so.

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 denied appellant the right to view the videotapes.

In adjudicating the *.004 charge, the hearing officer made the following findings:

Officer reports [appellant] was involved in a fight. The report is supported by a second officer report. One of the officers made the ID via security tape which he reviewed a second time to make sure there were no mistakes. [Appellant] claims he was not involved but fails to provide evidence to support him, all relied on to determine guilt.

In adjudicating the *.306 charge, the hearing officer found:

Officer reports [appellant] was involved in a fight (which caused the alarm to be sounded). The report is supported by a second officer report. One of the officers made the ID via security tape, which he reviewed a second time to make sure there were no mistakes, [appellant] claims he was not involved, but fails to provide evidence to support him, all [reports] relied on to determine guilt.

Appellant claims the record lacks substantial credible evidence to support his adjudication. That argument is without merit. Officer Diaz personally observed appellant's involvement in the altercation. That observation was verified by other officers upon review of the videotapes. The hearing officer's findings could reasonably have been reached on the sufficient evidence in the record. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The agency decision was neither arbitrary nor capricious, nor unsupportable by the evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). 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). Here, the evidence was sufficient to support the agency's finding that appellant was involved in the assault on Abruzia.

Appellant's procedural arguments are similarly without merit. He 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 provided a counsel substitute; advised of his immunity rights; given an opportunity to call witnesses and cross-examine the agency's witnesses; and was aware of the charges against him prior to the hearing. 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)

5

A-2116-05T3

 

August 21, 2006