RUPERTO JIMENEZ 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NOT FOR PUBLICATION WITHOUT THE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-5965-08T35965-08T3

RUPERTO JIMENEZ,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted August 17, 2010 - Decided

Before Judges Sabatino and Ashrafi.

On appeal from a Final Determination of the New Jersey Department of Corrections.

Ruperto Jimenez, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Ruperto Jimenez appeals sanctions imposed upon him by the Department of Corrections (DOC) for possession of a weapon, sharpened instrument, or an unauthorized tool. We affirm.

On June 3, 2009, Jimenez was confined at the Southern State Correctional Facility, minimum unit camp. On the morning of that date, he was working in a welding shop when an auto body shop teacher saw him at a grinder honing to a point a metal object. When Jimenez noticed that the teacher had observed him, he put the object in a box near the grinder and walked away. The auto body teacher reported his observation to the welding shop teacher and a corrections officer. The object was retrieved from the box. It was a three and a half inch piece of metal that had been sharpened to a point.

The following day, a disciplinary report was served upon Jimenez charging violation of disciplinary infraction *.202, possession of a weapon, such as but not limited to a sharpened instrument or unauthorized tool, in violation of N.J.A.C. 10A:4-4.1. At his first appearance before a hearing officer on June 4, 2009, Jimenez pleaded not guilty and a counsel substitute was appointed at his request to assist in his defense. After consultation with Jimenez, the counsel substitute waived the right to have twenty-four-hour notice before a disciplinary hearing was held and proceeded immediately with the hearing. A photocopy of the confiscated metal object was admitted in evidence as well as the statements of the two shop teachers and the corrections officer who had instituted the charge but had not personally witnessed the incident.

Jimenez did not deny that he had possessed the item, but he testified that it was not a weapon. Jimenez said he was sharpening the item so that he could mark his initials for identification into his metal shop project. He said that marking the projects in that way was a common practice of inmates in the welding shop.

The hearing officer found Jimenez guilty of the infraction. In the adjudication report, the hearing officer wrote that the inmate had not denied possessing the item and honing it to a point. He discredited the explanation Jimenez gave for possessing and sharpening the instrument. The hearing officer sentenced Jimenez to fifteen days' detention, 365 days' administrative segregation, and 365 days' loss of commutation time.

On administrative appeal filed on behalf of Jimenez by his counsel substitute, the decision of the hearing officer was upheld by prison administration.

Before us, Jimenez contends that his conviction was not based on substantial evidence of his knowing possession of a weapon and he was denied due process because the hearing officer denied his right to confront the witnesses against him and to call witnesses in support of his defense.

Our scope of review of prison disciplinary matters is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We will defer to the agency's conclusions so long as the decision is not arbitrary or capricious and is supported by substantial credible evidence. Id. at 579-80. In particular, we defer to matters that lie within the special competence and expertise of an administrative agency. Brady v. Dep't of Pers., 149 N.J. 244, 256-57 (1997). "We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005).

The regulation charged does not require proof that the inmate actually intended to use the prohibited item as a weapon. Possession in itself of an item that is a sharpened instrument or an unauthorized tool is a violation. Jimenez does not dispute that he possessed the sharpened metal object seized from the box near the grinder where he put it. The evidence before the hearing officer was clearly sufficient to find a violation of disciplinary infraction *.202.

As to denial of the inmate's due process rights, as required by Avant v. Clifford, 67 N.J. 496, 525-39 (1975), Jimenez argues on appeal that he sought to confront the witnesses against him and to call other witnesses, but there is no indication of those requests on the record of his disciplinary hearing. The counsel substitute signed the adjudication report attesting to the accuracy of the information contained in the record of the proceedings, including the markings "N/A," presumably meaning "not applicable," in the lines of the form recording the inmate's request for witnesses and confrontation.

While Jimenez contends on appeal that his counsel substitute did not consult with him and made false representa-tions in the course of the proceedings, he does not dispute that he agreed to waive his right to twenty-four-hour notice prior to the hearing and agreed to proceed immediately with the disciplinary hearing. The waiver contradicts his unsupported claim on appeal that he requested confrontation or the testimony of other inmates in the welding shop who allegedly would have supported his defense that the tool was being fashioned for the purpose of marking his shop project.

More important, with the admission that he possessed and was sharpening the tool, the anticipated testimony of other inmates in the shop and the confrontation of the shop teachers and corrections officer would not have affected a finding of guilt. At no time did Jimenez proffer any evidence that he had been authorized to fabricate such a tool for the purpose he claimed. Without such authorization, he was in violation of the disciplinary infraction even if his only purpose was to use the unauthorized tool to carve his initials into his shop project.

A sharpened metal object is a dangerous tool for inmates to possess in a prison, and prison officials understandably have promulgated rules against their possession. Jimenez's excuse does not alleviate the dangerous activity of fabricating such a tool or instrument without express authorization of prison officials.

Also, Jimenez did not refute the allegation of the auto shop teacher that he had observed Jimenez hiding the item in a box and walking away. There is no dispute that the metal object was confiscated from the box. If Jimenez had a legitimate, accepted purpose for possession of the item, there would have been no reason to hide and attempt to distance himself from it when observed. The proposed defenses of Jimenez were simply not enough to answer the charge. The alleged due process violations in the hearing did not affect the opportunity of Jimenez to present a viable defense.

We find nothing arbitrary or capricious in the DOC's decision imposing sanctions upon Jimenez for possession and concealment of a dangerous metal instrument within the prison.

Affirmed.

 

We have considered the contention of Jimenez that his counsel substitute signed Jimenez's name on the request for administrative appeal without his consent. Assuming this allegation is true, we find no prejudice because Jimenez has been afforded the opportunity to present all his arguments before us, and we find no merit in the appeal.

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A-5965-08T3

 

August 24, 2010