DANIEL DELGADO v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3110-09T4

DANIEL DELGADO,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________________

April 28, 2011

Submitted March 15, 2011 - Decided

Before Judges Carchman and Messano.

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

Daniel Delgado, appellant pro se.

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

PER CURIAM

Daniel Delgado, an inmate at the New Jersey State Prison in Trenton, appeals from the final administrative decision of the Department of Corrections (DOC) adjudicating him guilty of violating N.J.A.C. 10A:4-4.1, specifically *.803/*.352 (attempted "counterfeiting, forging or unauthorized reproduction or use of any classification document, court document, psychiatric, psychological or medical report, money or any other official document"). Delgado contends "there was no substantial credible evidence of" his guilt. We have considered the argument in light of the record and applicable legal standards. We affirm.

Materials were confiscated from Delgado's cell on December 29, 2009. Corrections Officer J. Maze reviewed the materials the following day and discovered a letter dated December 11 belonging to another inmate, Cruz. The letter advised that an individual, Billie Jo Casias, was "permanently banned" from the prison visitation program. Maze also discovered two "Visit Addition and Deletion" forms used to add visitors to Delgado's approved visitation list. On those forms, Delgado sought to add Casias to his approved visitor list, and he indicated that Casias was not on any other list and had never been incarcerated. Maze discovered that Casias had been incarcerated at the Edna Mahan Correctional Facility and was released from custody on December 6, 2009. Delgado was charged with a violation of *.352.

At a disciplinary hearing held on January 4, 2010, Delgado was provided with counsel substitute and pled not guilty. Delgado did not name any witnesses and declined the opportunity to call any. Counsel substitute argued that Casias visited the facility on December 28, 2009, and that Delgado did not know she was "banned" from the prison. The hearing officer concluded that Delgado knew Casias was not permitted in the facility based upon the letter to Cruz that Delgado had in his possession. The hearing officer amended the charge to attempt, *.803, and adjudicated Delgado guilty of the amended charge. He imposed the following sanctions: 10 days detention, with credit for time served; loss of 180 days of commutation credits; and a referral to the classification committee with a recommendation of the loss of contact visitation for one year.

Delgado filed an administrative appeal and again argued that he was unaware Casias was banned from visits at the facility. The Assistant Superintendent denied Delgado's appeal, concluding "[t]here was substantial credible evidence to uphold the finding of the [h]earing [o]fficer." This appeal followed.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "Substantial evidence means such evidence as a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quotations omitted). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (second alteration in original) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We have noted in the past that the Legislature has provided DOC with broad discretion in all matters regarding the administration of a prison facility, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).

"[I]nmates are responsible for submitting a list of names and addresses of their potential visitors to the Administrator or designee." N.J.A.C. 10A:18-6.2(a). "[A]ny subsequent revisions to [the inmate's] list of visitors" must be submitted "in accordance with internal management procedures of the correctional facility." N.J.A.C. 10A:18-6.2(b). Any person who has an "adult criminal conviction" must disclose that fact and the "[f]ailure to provide such disclosure shall result in the visitor being banned from visiting an inmate committed to the custody of the [DOC] for a minimum of 60 days." N.J.A.C. 10A:18-6.3(b). According to the inmate handbook that is in the record, requests to add a visitor required a fourteen-day waiting period "in order that proper clearance and approval . . . may be obtained."

The December 11, 2009 letter to Casias does not explain why she was "permanently banned" from visitation at the facility, but the reason is of no moment. The letter was copied to inmate Cruz and found in Delgado's cell. Delgado submitted forms adding Casias to his visitor list on December 14, 2009, and the copy of one of the forms in the record indicated it was received in the prison mailroom on December 22. Casias' name appears on a printout of Delgado's visitor list dated December 29.

Delgado claimed through counsel substitute that he did not know Casias was a prohibited visitor when he made the requested change. In his administrative appeal, he further argued that he found out from Cruz that Casias was banned only after she actually visited on December 28. Delgado claims before us that he should not be disciplined because of the prison administration's oversight.

However, the hearing officer and the assistant superintendent were free to reject the claim that Delgado only found out about Casias' status after the visit. That claim was unsupported by any other evidence, for example, a statement by Cruz supporting this version of events. And, the hearing officer was entitled to conclude that Delgado's decision to add Casias to his visitor list days after she was banned from visitation while on Cruz's list was not a coincidence, but rather was an attempt to use an official record in an unauthorized manner. See N.J.A.C. 10A:4-4.1(*.803/*.352.)

Moreover, even if Casias were permitted inadvertently to visit the facility after she was banned, the argument does not negate the substantial credible evidence in the record that Delgado knew of Casias' status when he sought to add her to the visitor list. That was the focus of the disciplinary charge.

Based upon our review of the record, we are convinced that the charge was supported by substantial credible evidence, and DOC's decision was not arbitrary, capricious or unreasonable.

Affirmed.