CLAUDIO BROCATO 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NOT FOR PUBLICATION WITHOUT THE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-4276-07T34276-07T3

CLAUDIO BROCATO,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________________

 

Submitted March 31, 2009 - Decided

Before Judges Skillman and Grall.

On appeal from the New Jersey Department

of Corrections.

Claudio Brocato, appellant pro se.

Anne Milgram, Attorney General, attorney

for respondent (Lewis A. Scheindlin,

Assistant Attorney General, of counsel;

Ellen M. Hale, Deputy Attorney General,

on the brief).

PER CURIAM

Claudio Brocato, an inmate presently confined at East Jersey State Prison, appeals from an adjudication of disciplinary infractions for an act prohibited by N.J.A.C. 10A:4-4.1(a), "*.202 possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool." The objects two pieces of metal sharpened to a point and seven exposed razor blades were discovered in the folds of a metal desk and shelving during a search of the cell occupied by Brocato and another inmate.

Prior to the hearing, counsel substitute was appointed. Brocato also filed a request for a polygraph test in which he asserted that he had inspected the cell when he took occupancy and that the objects the officers found were not there. The Administrator denied a polygraph noting that the hearing officer could assess the credibility of his claims. See N.J.A.C. 10A:3-7.1.

Brocato did not testify at the hearing and, although he was given the opportunity, did not ask to present or confront any witness.

Based on reports filed by the officers involved in the search and on photographs of the objects recovered, the hearing officer found Brocato guilty of prohibited act *202. He recommended a sanction consisting of fifteen days' detention, 365 days' loss of commutation time and 365 days' administrative segregation. Brocato filed an administrative appeal, but the Administrator concluded that the hearing officer had afforded Brocato all of the required procedural protections and reached a decision supported by substantial evidence.

On this appeal Brocato presents the following issues for our consideration:

I. I HAVE A LEGAL RIGHT TO A[N] ADVERSARIAL

DISCIPLINARY HEARING, WITH ALL THE PROTECTIONS AFFORDED BY AVANT V. CLIFFORD AND PROGENY.

A. I HAVE A RIGHT TO A POLYGRAPH

EXAMINATION. (NOT RAISED BELOW)

B. THE REPORTS FILED BY THE DOC ARE

ILLEGIBLE, AND I HAVE A RIGHT TO

READ ALL OF THE REPORTS. (NOT

RAISED BELOW)

II. THE HEARING OFFICER['S DECISION] WAS NOT

BASED UPON SUBSTANTIAL EVIDENCE AS MANDATED BY N.J.A.C. 10A:4-9.15(A).

Because the decision of the "administrative agency is supported by sufficient credible evidence on the record as a whole," we affirm. R. 2:11-3(e)(1)(D). Brocato's arguments about the fairness of the proceeding warrant only brief comment. R. 2:11-3(e)(1)(E). The documentary evidence on which the adjudication is based is legible and the photographs clearly depict the contraband. Further, the Administrator did not abuse his discretion when he concluded that the hearing officer could fairly evaluate the credibility of Brocato's denial of knowledge without the results of a polygraph. See N.J.A.C. 10A:3-7.1; Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005).

Affirmed.

 

The issue was raised below.

(continued)

(continued)

4

A-4276-07T3

April 22, 2009