HECTOR SANABRIA v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2632-06T22632-06T2

A-4155-06T2

HECTOR SANABRIA,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________

 

Submitted March 31, 2008 - Decided

Before Judges Lintner and Alvarez.

On appeal from a Final Decision of the Department of Corrections.

Hector Sanabria, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Keith S. Massey, Jr., and Lisa A. Puglisi, Deputy Attorneys General, on the brief).

PER CURIAM

Petitioner, Hector Sanabria, is an inmate currently confined to New Jersey State Prison in Trenton, where he is serving a ninety-year term for murder, aggravated assault, and various drug and weapons related offenses. He appeals from a November 8, 2006, determination of the Department of Corrections (Department) affirming the imposition of 15 days detention, with credit for time served, 180 days administrative segregation, and 180 days loss of commutation credit for committing prohibited act *.803/*.306 (attempt to commit "conduct which disrupts or interferes with the security or orderly running of the correctional facility) and .702 (unauthorized contacts with the public) in violation of N.J.A.C. 10A:4-4.1(a). He also appeals from a February 2, 2007, decision of the Department placing him in Management Control Unit detention, a housing unit designed to insure the effective control of the prison's most violent and disruptive inmates.

On appeal, Sanabria raises the following points:

POINT I

THE HEARING OFFICER'S DECISION FINDING THE APPELLANT GUILTY OF VIOLATING PRISON RULES WAS NOT BASED UPON SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AND VIOLATED HIS DUE PROCESS RIGHTS.

POINT II

THE SPECIAL INVESTIGATIONS DIVISION'S INVESTIGATOR'S DECISION AND FRAUDULENT ACTIONS TO WITHHOLD EXCULPATORY EVIDENCE FROM THE HEARING OFFICER AND APPELLANT, BY FAILING TO INFORM THEM THAT THE INTERVIEW WITH THE ONLY WITNESS WAS RECORDED, VIOLATED THE APPELLANT'S RIGHT TO THE PROCESS HE WAS DUE.

POINT III

THE ASSISTANT SUPERINTENDENT'S FINDINGS UPHOLDING THE APPELLANT'S DISCIPLINE WERE INADEQUATE AND CONTRARY TO THIS COURT'S DECISION IN BLACKWELL V. DEPARTMENT OF CORRECTIONS, 348 N.J. Super. 117 ([App. Div.] 2002).

POINT IV

THE APPELLANT WAS DENIED AN INDEPENDENT INVESTIGATION OF THE DISCIPLINARY CHARGES IN ACCORDANCE WITH N.J.A.C. 10A:4-9.5, WHICH WAS A VIOLATION OF HIS RIGHT TO DUE PROCESS.

POINT V

THE APPELLANT WAS DENIED DUE PROCESS WHEN HE WAS PREVENTED THE OPPORTUNITY TO PRESENT DOCUMENT EVIDENCE AT THE DISCIPLINARY HEARING.

POINT VI

THE DISCIPLINARY REPORTS THAT THE APPELLANT RECEIVED WERE RIDDLED WITH PROCEDURAL DEFECTS LACKING SPECIFICS SUCH AS DATES, TIMES AND LOCATIONS AND AUTHORIZATION FOR THE CHARGES WHICH DID NOT ALLOW HIM TO PREPARE A DEFENSE THIS WAS A VIOLATION OF THE PROCESS HE WAS DUE.

POINT VII

THE ADJUDICATION PAPERS CONTAINING THE SUMMARY OF EVIDENCE HAD PROCEDURAL DEFECTS, ONE WAS NOT SIGNED OR DATED AND THE OTHER WAS SIGNED BY THE HEARING OFFICER REFLECTING A DATE AND TIME IN WHICH HE WAS NOT PRESENT.

POINT VIII

THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE THE APPELLANT'S PLACEMENT IN THE MANAGEMENT CONTROL UNIT BY THE MCURC WAS NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD, THE MCURC FAILED TO COMPLY WITH THE REQUIREMENTS IN N.J.A.C. 10A:5-2.6 AND THEY VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS.

(A)

THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE'S DECISION CONTAINED INFORMATION THAT WAS NOT IN THE RECORD AND WAS UNDISCLOSED TO THE APPELLANT AND VIOLATED N.J.A.C. 10A:5-2.6(t).

(B)

THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE FAILED TO PROVIDE A SUMMARY OF FACTS IN THEIR DECISION UPON WHICH THEY CONCLUDED THAT THE CONFIDENTIAL INFORMANT WAS CREDIBLE.

(C)

THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE FAILED TO COMPLY WITH THE REQUIREMENTS FOR THE PRESENTATION OF WITNESSES BY THE APPELLANT AS PROVIDED IN N.J.A.C. 10A:5-2.6(l)[,] (m) [&] (n).

(D)

THE INFORMATION CONTAINED IN THE CRITERIA RECORD SHEET DID NOT COMPLY WITH THE STANDARDS OUTLINED IN N.J.A.C. 10A:5-2.6(a) [&] (b).

(E)

THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE FAILED TO INFORM THE APPELLANT OF ALL THE ADVERSE INFORMATION AGAINST HIM AS SHOWN BY THE UNDISCLOSED INFORMATION IN THEIR DECISION, THIS WAS CONTRARY TO THE REQUIREMENTS IN N.J.A.C. 10A:5-2.6(h).

POINT IX

MR. SANABRIA WAS DENIED DUE PROCESS BECAUSE THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE DID NOT INDICATE IN THEIR DECISION THE CRITERIA THEY WERE USING TO PLACE HIM IN THE MANAGEMENT CONTROL UNIT AND THE DECISION OF THE MCURC FOR PLACEMENT SHOULD BE REVERSED.

POINT X

THE DECISION OF THE MCURC AND THE ASSOCIATE ADMINISTRATOR'S DECISION UPHOLDING THE FINDINGS OF THE MCURC WERE INADEQUATE AND CONTRARY TO THIS COURT'S DECISION IN BLACKWELL V. DEPARTMENT OF CORRECTIONS, 348 N.J. Super. 117 (App. Div. 2002).

Hearing Officer Maniscalco presided over the discipline hearing on October 23, 2006. A confidential investigation conducted by Raphael Dolce, a Senior Investigator with the Department's Special Investigations Division, with the aid of a confidential informant, revealed that Sanabria fostered a relationship with Luz Rodriguez, a woman who initially came to the prison as a member of a church group known as the Uncion Divina, at which time she obtained Sanabria's name from a list of inmates who wanted to participate in outside correspondence. After picking Sanabria's name at random, Rodriguez and Sanabria developed a romantic relationship. At first, Rodriguez visited Sanabria at the prison as a member of the church group on several occasions. Later, Rodriguez visited the prison outside the auspices of the church, attending a poetry reading held by an inmate group known as the Hispanic American Progress (HAP), in which Sanabria, an admitted member of the group, submitted her name and had it placed on a list of community volunteers for attendance at the reading. Eventually, she visited Sanabria in a personal capacity outside of church related functions.

HAP was initially started as a liaison between the inmate population and the prison administration. However, through a confidential informant, it was learned that Sanabria, together with others, used HAP's balcony-situated office to run drugs and contraband smuggling operations, which included facilitating the obtaining of three hunting grade knives and a loaded .32 caliber handgun eventually recovered, respectively, within secured areas of the prison in 2005 and 2006. The investigation revealed that the gun was received by Sanabria and the knives were obtained to strengthen a Security Threat Group created by Sanabria's inmate brother, Jesus. The investigation also established that Rodriguez was given money by specific inmates, which was accepted by her to pay phone bills and buy gifts, thereby evading existing institutional measures designed to control monetary transactions, mail, and telephone use.

Maniscalco found, based upon the above evidence, that Sanabria "participated in unauthorized visits with [Rodriguez] and solicited other inmates to launder monies to conceal transactions" in "an attempt to circumvent existing security and monitoring procedures of the facility." On November 8, 2006, Sanabria's administrative appeal was denied by Assistant Superintendent Al Kandell.

Following hearings held on November 27, 2006 and December 19, 2006, the Management Control Unit (MCU) Review Committee (Committee) on February 2, 2007, rendered a decision assigning Sanabria to MCU. In arriving at its decision, the Committee reviewed Sanabria's disciplinary history, which included seven charges. A 1992 assault with a weapon and the disciplinary charges that are the subject of the within appeal were deemed the most serious infractions. The Committee found that Sanabria's involvement with HAP, a purported inmate self-help group that was a "ruse," "orchestrated . . . to avoid detection," was organized in an "attempt[] to mask a variety of illegitimate, unauthorized activities inside" the prison. Determining that institutional transfer was not an option, the Committee noted that Sanabria's ninety-year mandatory minimum sentence required his being imprisoned at New Jersey State Prison, the only maximum security institution available. Administrator Michelle Ricci affirmed the Committee's decision on March 16, 2007. Finding the Committee's decision "appropriate," Ricci explained:

The committee considered your past institutional conduct or disciplinary record, which reflects that you cannot be housed in general population due to your disruptive conduct at New Jersey State Prison. This includes your history of attempts to introduce contraband (such as weapons, narcotics[,] etc.) into the facility, which was supported by NJSP Special Investigation Division investigation, as well as other institutional infractions. Based on the aforementioned factors, you are a threat to the safety and security of this institution.

Based on these facts, it is quite apparent that you are incapable of being housed in general population. Your disruptive behavior that is documented by the Special Investigation Division at NJSP, along with the disciplinary infractions you received while incarcerated at NJSP reflects that you should be housed in a highly structured environment such as the Management Control Unit.

 
On appeal, Sanabria raises a multitude of issues, including assertions that he was: (1) the subject of a witch hunt and fraudulent SID investigation; (2) not afforded appropriate constitutional protections; (3) unfairly targeted as a member of HAP; and (3) denied access to exculpatory evidence. He also contends that both the disciplinary charges and the decision to place him in the MCU was not based upon substantial credible evidence in the record. We disagree. Our careful review of the entire record convinces us that both decisions of the Department are supported by substantial credible evidence in the administrative record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Moreover, Sanabria was accorded the appropriate safeguards and protections during the procedure in accordance with Avant v. Clifford, 67 N.J. 496, 522-30 (1975). Sanabria's factual and legal contentions to the contrary are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

(continued)

(continued)

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A-2632-06T2

April 11, 2008