PEDRO ANDRADES v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0707-09T1

PEDRO ANDRADES,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Defendant.

_________________________________________

Submitted May 23, 2011 Decided June 8, 2011

Before Judges A. A. Rodr guez and LeWinn.

On appeal from the New Jersey Department of Corrections.

Pedro Andrades, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Laura Eytan, Deputy Attorney General, on the brief).

PER CURIAM

Pedro Andrades, an inmate at Northern State Prison, appeals from a final Agency decision of the Department of Corrections (DOC), imposing disciplinary sanction for committing prohibited act *.005, threatening another with harm or offense against his/her person, N.J.A.C. 10A:4-4.1(a). We affirm.

These are the salient facts. On July 28, 2009, a female teaching assistant reported that Andrades yelled loud obscenities of a sexual nature to her as she was walking along the South Arcade walkway, which is parallel to the E-Unit recreation yard. She reported that Andrades yelled in Spanish at her that she "looked good," "had a big fat ass," and that he wanted to "smack her ass" and "play with her breasts." He made other sexual proposals.

Senior Corrections Officer Perry saw and heard Andrades yelling and taunting the teaching assistant. She indicated to Perry that she felt threatened by Andrades' conduct.

Lieutenant Bruce Davis interviewed Andrades, who admitted that he made several statements to the teaching assistant as she proceeded on the walkway. He denied threatening her. He only wanted to talk to her.

Sergeant Carlos Perez conducted an investigation. Andrades pled "not guilty" and did not request any witnesses. Perez referred the charges to a hearing officer.

Hearing Officer J. McGovern granted Andrades' request for the assistance of a counsel substitute. Andrades denied the charge and pled not guilty and testified that he was complimenting the teaching assistant. The teaching assistant testified and contradicted Andrades' testimony. Perry testified as to his observations and his conversation with the teaching assistant. Andrades requested a polygraph. The hearing officer denied this request.

The hearing officer found that Andrades committed prohibited act *.005, and recommended the following sanctions: 15 days detention; 365 days loss of commutation time; 180 days loss of recreation privileges; and 195 days administrative segregation time. Andrades filed an administrative appeal. The Assistant Superintendent upheld the hearing officer's findings and imposed the same sanctions.

On appeal, Andrades contends:

[ANDRADES'] CONSTITUTIONAL RIGHT TO DUE PROCESS WAS VIOLATED WHEN PRISON OFFICIALS DENIED HIS REQUEST FOR A POLYGRAPH EXAMINATION, DESPITE "SERIOUS ISSUES OF CREDIBILITY."

THE SANCTION OF LOSS OF RECREATION VIOLATES [ANDRADES'] RIGHTS PROMULGATED WITHIN THE NEW JERSEY ADMINISTRATIVE CODE, TITLE 10A ESPECIALLY FOR 180 CALENDAR DAYS.

We reject these arguments, which are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2). Our examination of the process and procedures afforded to Andrades by the DOC to contest the charges and to present his defense, indicates that he received all of the rights generally accorded to prison inmates. McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Avant v. Clifford, 67 N.J. 496, 523 (1975).

Moreover, we have carefully reviewed the items comprising the record on appeal and the arguments submitted by Andrades and conclude that there was substantial evidence to support the adjudication. Clifford, supra, 67 N.J. at 530; R. 2:11-3(e)(1)(D).

We also note that N.J.A.C. 10A:4-5.1(g)(8) provides:

Recommending loss of recreation privileges for up to 180 calendar days provide the offense is specifically related to, or concerned with a recreation privilege.

A