MICHAEL ROMERO 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NOT FOR PUBLICATION WITHOUT THE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-3208-09T2

MICHAEL ROMERO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

April 29, 2011

Submitted April 13, 2011 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Final Agency Decision of the New Jersey Department of Corrections.

Michael Romero, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Charles S. Cohen, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Michael Romero appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) upholding the decision of a hearing officer to impose disciplinary sanctions for committing prohibited act *.010, participating in a security threat group activity, in violation of N.J.A.C. 10A:4-4.1. We affirm.

Appellant is currently incarcerated at New Jersey State Prison (NJSP) in Trenton. He mailed a letter dated December 1, 2009, to an inmate housed in East Jersey State Prison (EJSP) in Rahway, which contained information relating to the security threat group known as the Almighty Latin King and Queen Nation. The outside of the envelope containing the letter had a cancelled postage stamp and postmark from "Trenton, NJ" with the date of December 3, 2009.

The letter and envelope were seized at EJSP and examined by Investigator R. Dolce, a certified security threat groups expert. Dolce issued a report confirming the letter contained language relating to the Almighty Latin King and Queen Nation. The letter was returned to NJSP for disposition.

Appellant was charged with prohibited act *.010. A hearing was held on January 6 and 8, 2010, before Hearing Officer Sal Maniscalco. Appellant pled not guilty, requested and received counsel substitute, and was offered, but declined, to call witnesses or confront adverse witnesses. He argued his constitutional rights to due process were violated by the unlawful reading of his letter, in violation of N.J.A.C. 10A:18-2.7(d). He also requested Maniscalco's recusal claiming he had pending litigation against the officer. Because Maniscalco had no recollection of such litigation, he denied the request.

Relying on Dolce's report, appellant's letter and the envelope, Maniscalco found the letter was inspected consistent with N.J.A.C. 10A:18-2.5(a) and sent to NJSP for disposition, and there was substantial evidence supporting the charge. He sanctioned appellant to ten days of disciplinary detention, 300 days of administrative segregation, and 300 days of loss of commutation time.

On January 18, 2010, appellant administratively appealed contending, in part, that the letter never left NJSP and was unlawfully read in violation of N.J.A.C. 10A:18-2.7(d). On January 27, 2010, Assistant Superintendent James Drumm affirmed Maniscalco's decision. This appeal followed.

On appeal, appellant contends: (1) he was deprived of his right to a full and fair hearing by Maniscalco's failure to recuse himself since he and Dolce were named as defendants in his pending civil rights complaint;1 (2) his letter was opened in violation of N.J.A.C. 10A:18-2.7; and (3) Maniscalco's decision is not based on substantial, credible evidence. We disagree with these contentions.

We reverse an agency's decision only where it is arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 23 (App. Div. 2005). An adjudication of guilt of the charge must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). "Substantial evidence" means "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). The term has also been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). The substantial evidence standard permits an agency to apply its expertise where the evidence supports more than one conclusion. See In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) ("Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'") (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).

Applying these standards, we discern no reason to disturb the DOC's decision. First, the alleged civil rights complaint included in appellant's appendix bears no docket number or filing date, thus casting doubt on whether it is "pending." Nevertheless, Maniscalco is not a named defendant, there is no indication the complaint was amended to name him as a defendant, and there is no return of service in the record. Thus, there was no reason for Maniscalco's recusal.

Second, N.J.A.C. 10A:18-2.7 does not apply to appellant's letter because the credible evidence establishes it was opened at EJSP, not at NJSP. Even assuming the contrary, "[a]ll inmate correspondence to or from other incarcerated inmates may be read to ensure that the correspondence does not contain any content prohibited by N.J.A.C. 10A:18-2.14." N.J.A.C. 10A:18-2.5(a). Prison authorities are "authorized to limit inmate correspondence to or from other inmates for purposes of ensuring the safe, secure and orderly operation of the correctional facility or operational unit." N.J.A.C. 10A:18-2.5(b). Thus, it is irrelevant where the letter was opened. Prison officials were authorized to read appellant's letter to another incarcerated inmate to ensure it contained no prohibited content, and to ensure the safe, secure and orderly operation of the correctional facility.

Finally, we are satisfied there was substantial, credible evidence supporting an adjudication of guilt. The DOC's decision affirming Maniscalco's decision was, therefore, not arbitrary, capricious, or unreasonable.

1 We decline to address appellant's contention, raised for the first time on appeal, that Maniscalco should have recused himself because Dolce was named as a defendant in his civil rights complaint, Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997), and we may not consider claims raised outside the record, R. 2:5-4.