GEORGE NAZARIO 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NOT FOR PUBLICATION WITHOUT THE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-0

GEORGE NAZARIO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________

December 19, 2013

Submitted: December 11, 2013 Decided:

Before Judges Fuentes and Haas.

On appeal from the New Jersey Department of Corrections.

George Nazario, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Appellant George Nazario, an inmate currently in the custody of the Department of Corrections (DOC), appeals from the DOC's July 31, 2012 decision finding him guilty of violating *.101, escape, and the DOC's August 7, 2012 decision finding him guilty of violating *.204, use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff. We affirm.

On July 25, 2012, Nazario was residing at Clinton House, a half-way house in the community through which he was permitted to work at a manufacturing facility in Trenton. At approximately 2:05 p.m., two DOC case managers conducted a site check at the facility and learned that Nazario had signed himself out of work at 12:00 p.m. after advising his employer that he had "a very important appointment" at the Garden State Youth Correctional Facility (Garden State). The case managers advised staff at Garden State that Nazario had left his work site without permission and an "escape notification" was issued.

Nazario returned to Clinton House at 2:55 p.m. When confronted, Nazario admitted he left the work site without permission in order to visit his sister and niece at the hospital. Nazario was charged with escape and transported to Garden State. At approximately 6:00 p.m., DOC staff ordered Nazario to submit to a drug test. The laboratory results obtained from the State Department of Health were positive for opiates. Nazario was then charged with use of prohibited drugs.1

Nazario pled not guilty to both charges and the DOC conducted a disciplinary hearing for each separate charge. Nazario conceded he left the work site without first securing or requesting permission to do so from the DOC, or even informing DOC staff of the alleged family emergency. However, he asserted he had no desire to escape because he always intended to return to Clinton House. Defendant argued that the use of prohibited drugs charge should be dismissed because the sergeant had originally stated that the charge was based upon his use of THC50, rather than opiates.

Based upon the foregoing facts developed in the hearing record, the hearing officers found Nazario guilty of both charges. On the charge of escape, Hearing Officer Jantz sanctioned Nazario by imposing 15 days' detention with credit for time served, 180 days' administrative segregation, 180 days' loss of commutation time, and 30 days' loss of recreation privileges. Nazario filed an administrative appeal concerning the escape charge and, on July 31, 2012, Associate Administrator D'Ilio upheld the hearing officer's findings and sanctions.

With regard to the use of prohibited drugs charge, Hearing Officer DiBenedetto sanctioned Nazario with 15 days' detention with credit for time served, 180 days' administrative segregation, 180 days' loss of commutation time, and 365 days' urine monitoring. Following an administrative appeal, Associate Administrator D'Ilio issued a final decision on August 7, 2012, upholding the hearing officer's findings and sanctions, with the exception of the 15 days' detention, which was rescinded. This appeal followed.

On appeal, Nazario argues there was insufficient evidence in the record to support the hearing officer's finding of guilt on the escape charge and that his due process rights were violated because the use of prohibited drugs charge initially stated his urine sample was positive for THC50. We have considered Nazario's arguments in light of the record and applicable legal principles. We conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We add the following brief comments.

The scope of our review of an agency decision 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. 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. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). However, when reviewing a determination of the DOC in a matter involving prisoner discipline, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision the DOC followed regulations adopted to afford inmates procedural due process. See McDonald v. Pinchak, 139 N.J. 188, 194-196 (1995).

Having considered the record in light of the foregoing principles, we conclude that sufficient credible evidence in the record supports the DOC's determination that Nazario was guilty of violating each of the prison rules involved here. Nazario admitted that he left Clinton House without permission and was absent without leave for almost three hours. He also lied to his work site employer as to his whereabouts. Thus, there is a substantial basis in the record for the hearing officer's finding that Nazario was guilty of escape.

Similarly, the State Department of Health test of Nazario's urine sample was positive for opiates. Although the sergeant who wrote the charge initially stated that the sample was positive for THC50, this mistake was corrected prior to the hearing and the Department of Health's laboratory report clearly states that Nazario tested positive for opiates. Thus, Nazario had notice of the charge against him and none of his due process rights were violated.

1 When the DOC sergeant wrote the charge for use of prohibited drugs, he incorrectly stated that Nazario's urine sample tested positive for "THC50." However, he corrected the charge prior to the hearing to indicate that the sample tested positive for opiates.