JOHN KOUFOS 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NOT FOR PUBLICATION WITHOUT THE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

JOHN KOUFOS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________

January 17, 2014

Argued August 7, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from the New Jersey Department of Corrections.

Supti Bhattacharya argued the cause for appellant (Skey & Bhattacharya, LLC, attorneys; Mr. Bhattacharya, on the brief).

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

The opinion of the court was delivered by

ACCURSO, J.A.D.

John Koufos appeals from a September 10, 2012 final decision of the Department of Corrections (DOC), finding him guilty of disciplinary infraction charge .709, failure to comply with a written rule or regulation of the correctional facility, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

At the time of these events, Koufos was incarcerated at Mid-State Correctional Facility. According to the State's proofs, on August 30, 2012, at 4:45 p.m., Corrections Officer Recruit (COR) Riavez was strip-searching Koufos following a meeting Koufos had attended with his attorney. In the course of the search, Koufos asked COR Riavez about his family. Specifically, Koufos asked whether COR Riavez was related to Melissa Riavez.

COR Riavez asked Koufos why he wanted to know the information. Koufos advised that he "used to hang out with her" and a person named Couch, and that Couch was the person who was supposed to take the fall for Koufos. Koufos asked COR Riavez if he saw Melissa to let her know that. Koufos remembered that Melissa used to drive a "little white Honda," and stated that he knew she now worked at the Ocean County Jail and has a new last name. COR Riavez reported the conversation to the sergeant on duty, advising that the information Koufos relayed as to Riavez's sister was correct, although he did not confirm the information to Koufos.

Koufos was thereafter charged with prohibited act .709. The rules and regulations set forth in the inmate handbook prohibit undue familiarity between inmates and staff. Specifically, the handbook provides:

[u]ndue familiarity between inmates and staff or volunteers is prohibited. Inmates must limit their contact with staff and volunteers to authorized and official interactions. Any inmate who participates in, or engages in, any unauthorized contact, interaction, or relationship with a staff member or volunteer shall be subject to disciplinary action. Examples of undue familiarity or an inappropriate contact/relationship includes, but is not limited to: giving or receiving favors, gifts, services, displays of affection or any sexual behavior or contact.

Koufos was given timely written notice of the charge and afforded the assistance of counsel-substitute, which he accepted.1 Koufos pled not guilty and declined to make a statement to the investigator. He did, however, request a statement from a psychologist with whom he had met at the Ocean County Jail. The investigator accordingly requested a statement from the psychologist. The psychologist declined to give a written statement as she was not present for the encounter between Koufos and COR Riavez. She also noted that the content of her conversations with Koufos was confidential.

At the hearing on September 6, 2012, Koufos declined the opportunity to confront or cross-examine COR Riavez. Koufos admitted asking COR Riavez if he was related to Melissa Riavez but claimed he did not know it was a violation of the rules. He also claimed not to know COR Riavez or his sister. Koufos admitted he made a mistake, noted it was his first time in prison, and pledged to try and do better. Koufos asked to view the video of his search by COR Riavez. Counsel-substitute, however, acknowledged that the video was without sound and declined to have it shown. Counsel-substitute stated that Koufos had made a mistake and learned his lesson.

After considering the evidence, the hearing officer found Koufos guilty and sanctioned him to ninety days administrative segregation (sixty days of which was suspended); sixty days loss of commutation time; thirty days loss of recreation privileges; and ninety days loss of telephone privileges. Koufos filed an administrative appeal. On September 10, 2012, the associate administrator of the prison upheld the hearing officer's determination, concluding upon his review of the evidence that the sanctions were proportionate to the charge.

On this appeal, Koufos contends that there was no substantial evidence to support the charge and that he was denied the right to call witnesses, present evidence, and confront the witness against him. Koufos also contends that the sanctions were disproportionate to the offense. All of Koufos's claims are without merit.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Agency decisions carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Based upon our review of the record, we are satisfied that the reports and statements upon which the hearing officer and the associate administrator relied provided the necessary substantial evidence to support their findings on the .709 charge and that Koufos was provided with all of the substantive and procedural due process to which he was entitled. McDonald v. Pinchak, 139 N.J. 188, 196-201 (1995).

Koufos admitted asking COR Riavez about his sister and he declined the opportunity to confront the officer at the hearing. The only witness Koufos identified, the psychologist at the Ocean County Jail, declined to provide a statement in his behalf. Although Koufos contends her testimony was necessary to explain what prompted him to ask COR Riavez about his sister, his reason for asking the question is irrelevant, and her testimony thus immaterial. Koufos's claim that he was denied the opportunity to view the video is belied by the record. Although Koufos noted his desire to view the video, his counsel-substitute advised that there was no need to do so as the video lacked sound. Counsel-substitute signed the adjudication report confirming those facts.

Contrary to his contentions on appeal, the record is clear that Koufos was afforded the right to obtain witnesses in his behalf and to confront and cross-examine the officer who filed the charge. No other process was due. See Jones v. Dep't of Corr., 359 N.J. Super. 70, 75 (App. Div. 2003) (reiterating that inmates in prison disciplinary hearings are entitled to due process rights of confrontation and litigation right to witness access). The sanction imposed is in accordance with N.J.A.C. 10A:4-5.1(b) and appropriate in light of the seriousness of the offense.

Affirmed.

1 Both parties have brought to our attention that Koufos was formerly a criminal defense attorney admitted to practice in this State. That fact is not relevant to our disposition of this appeal.