CARLOS ROSADO 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NOT FOR PUBLICATION WITHOUT THE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-04916-12T2

CARLOS ROSADO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________

October 16, 2014

Submitted September 16, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from the New Jersey Department of Corrections.

Carlos Rosado, appellant pro se.

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

PER CURIAM

Carlos Rosado, an inmate currently incarcerated at Northern State Prison, appeals from a final disciplinary decision of the New Jersey Department of Corrections (DOC) which found he committed prohibited act *.205, misuse of medicine N.J.A.C. 10A:4-4.1(a), when he was incarcerated at Southern State Correctional Facility. He raises the following points on appeal

POINT I

APPELLANT WAS PLACED ON PRE-HEARING DETENTION STATUS IN VIOLATION OF ADMINISTRATIVE PROCEDURE, SINCE THE AUTHORIZATION FORM WAS NOT SIGNED.

POINT II

SERGEANT BONHAM'S FAILURE TO ORDER A THOROUGH INVESTIGATION INTO THE MATTER WAS UNPROFESSIONAL AND ULTIMATELY RESULTED IN APPELLANT RECEIVING A CHARGE.

A.

THE REPORTING EMPLOYEE (SGT.BONHAM) ALSO CONDUCTED A ONE-SIDED INVESTIGATION INTO THE MATTER IN VIOLATION OF THE ADMINISTRATIVE CODE (N.J.A.C. 10A:4-9.5).

POINT III

THE SUBSTANTIAL EVIDENCE STANDARD USED AT APPELLANT'S DISCIPLINARY HEARING IS UNRELIABLE, SINCE IT ALLOWS THE TRIER OF FACT TO MAKE A FINDING OF GUILT IN THE ABSENCE OF EVIDENCE.

POINT IV

THE [DISCIPLINARY HEARING OFFICER] ERRED IN REFUSING APPELLANT'S REQUEST FOR CONFRONTATION IN THE FACE OF THE ALLEGED CONFLICTING STATEMENTS. MOREOVER, S.C.O. BUCZYNSKI'S REPORT MERELY CORROBORATES HEARSAY.

We have considered these arguments and affirm.

I.

Two days before his scheduled release from prison, Rosado informed Senior Corrections Officer Buczynski that an unknown person broke into his assigned foot locker and stole his inhaler, clothes, letter, soap, lock, and prescribed Benadryl pills. The matter was referred to a superior officer, Sergeant Bonham. After initially reporting to Buczynski that his lock was missing, he told Bonham that his lock was unlocked but was not missing when he discovered the theft. A search of Rosado's cell found all of the allegedly missing items except the Benadryl pills and the lock for the locker. Bonham learned that ten days before the alleged theft, Rosado had been given sixty Benadryl pills. Since Rosado was prescribed to take two pills a day, Bonham concluded Rosado was missing forty-two pills, and charged him with prohibited act *205, the misuse of medicine, and placed him in prehearing detention. Rosado was also charged with other infractions but they are not the subject of this appeal.

Sergeant Turner served the disciplinary charges on Rosado and conducted an investigation. He determined that the charges had merit and referred the matter to a hearing officer for a disciplinary hearing. Rosado requested and was granted an assistance of counsel substitute to represent him at the hearing.

The disciplinary hearing officer found Rosado guilty of the charge because he did not believe Rosado's pills were stolen. He determined Rosado's testimony was not credible based on Rosado's conflicting stories about the alleged theft and his failure to present any evidence or witnesses to prove his locker was broken into. He also found that that if the locker was broken into it, the incident would have been loud and disruptive. The hearing officer noted thatinmates often misuse Benadryl or sell them to other inmates. The hearing officer imposed sanctions of ten days' detention with credit for time served, 120 days' administrative segregation, 120 days' loss of commutation time, 365 days' urine monitoring, and permanent loss of contact visits.

Rosado filed an administrative appeal of the hearing officer's decision to the prison's Associate Administrator based on three grounds. First, he asserted that the facts were misrepresented by the reporting officer. Second, he contended there was a violation of evidentiary standards used in his hearing because the record lacked sufficient evidence of guilt. Third, he argued that he was not afforded his due process protections when the hearing officer denied his request to confront and/or cross-examine adverse witnesses.

The prison's Associate Administrator affirmed the hearing officer s decision and sanctions. He determined that the hearing officer's decision was based on substantial evidence, the sanctions imposed were proportionate to the offense, and there were no violations of standards or misinterpretation of facts.

This appeal followed.

II.

Our review of agency action is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison,81 N.J. 571, 579-80 (1980)(citation omitted). Substantial evidence needed to sustain guilt of an infraction is "such evidence [that] a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35 N.J.358, 376 (1961)(citations omitted). We are obligated to give deference to credibility determinations made by the fact finder. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). 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)(quoting In re Appeal by Progressive Cas. Ins. Co.,307 N.J. Super.93, 102 (App. Div. 1997)).

With respect to administration of a correctional facility, we have noted that the Legislature has provided for the broad exercise of DOC's discretion, including disciplinary infractions by prisoners. Russo v. N.J. Dep't of Corr.,324 N.J. Super.576, 583 (App. Div. 1999). DOC regulation sets forth the evidentiary guideline to determine whether an inmate is guilty of disciplinary infraction. Pursuant to N.J.A.C. 10A:4-9.15(a), "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act. Substantial evidence needed to sustain guilt of a prohibited act is "such evidence [that] a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, supra, 35 N.J. at 376 (citations omitted). When the administrative agency's findings of fact are supported by adequate, substantial, and credible evidence, they are binding on appeal. Id.

Initially, we address Rosado's contention that the finding he violated *205 was not supported by credible evidence. He asserts his report of the theft is truthful, and Bonham and Buczynski manufactured the charge against him. We find no merit to these arguments.

Here, Rosado's guilt was based on sufficient evidence in the record. The hearing officer found Rosado's alleged theft complaint lacked credibility based upon the prison officials' reports noting Rosado's inconsistent reports about what was taken and what was recovered. Initially, he reported his lock was missing. He then changed his story by stating his locker was unlocked and his lock was not missing. The only missing items were Rosado's forty-two Benadryl pills and his lock. It was his responsibility to account for all of his medicine. Rosado did not offer any independent evidence or witnesses, to prove his locker had been broken into. Apparently, the hearing officer concluded that since inmates often misuse Benadryl or sell them to other inmates, Rosado falsely reported the theft to cover up his misuse or selling of his Benadryl given his scheduled released from prison two days after the reported theft. There is nothing in the record that warrants a conclusion that the DOC's factual findings were wrong.

Rosado also contends that he was not allowed to confront his accuser in violation of N.J.A.C. 10A:4-9.14, which provides inmates, if requested, the limited right to confront and cross-examine adverse witnesses when deemed necessary for adequate presentation of evidence by the hearing officer. See McDonald v. Pinchak, 139 N.J. 188, 197 (1995). We disagree.

The record demonstrates that Rosado was offered, but declined, the opportunity to confront and/or cross-examine any adverse witnesses. Rosado's counsel substitute signed and acknowledged the adjudication of disciplinary charge, which reflects that he agreed with the statement contained therein that Rosado refused to confront and/or cross-examine any adverse witnesses.

Next, Rosado contends that the DOC violated two administrative procedures during his disciplinary proceedings. First, he argues that the DOC failed to obtain the signature of a custody staff supervisor to authorize his prehearing detention as required by N.J.A.C. 10A:4-10.1(d). Second, he argues that Bonham's involvement as reporting officer and investigating officer violates N.J.A.C. 10A:4-9.5(b), which requires that the investigating officer is a staff member "who has not been involved in the particular incident to be investigated."

However, neither of these contentions were raised at the administrative appeal and should not be considered by this court. In Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), it was held that an issue not properly preserved at the hearing level may not be considered at the appellate level unless the issue relates to jurisdiction or concerns matters of great public interest. Rosado does not raise jurisdictional or public interest concerns to support his contentions that administrative procedures were not followed. Thus, his arguments shall not be considered.

Assuming Rosado did raise these contentions at the hearing, they have no merit in granting his relief to reverse his disciplinary action or remand for a new hearing. The signatures necessary to authorize Rosado's pre-hearing detention have no bearing on the DOC's decision to find him guilty of *205 and our review of that decision. A review of the record indicates Bonham executed the disciplinary report, but Turner conducted the investigation as evidenced by his signature on the investigator's report.

Lastly, we address Rosado's contention that Bonham's disciplinary report misrepresented the facts which caused him to be charged with prohibited act *205. Specifically, Rosado asserts that Bonham intentionally failed to mention Rosado's reported theft in the disciplinary report to make it appear that Bonham discovered the Benadryl pills were missing, rather than reported stolen by Rosado. There is no merit to this contention.

There is no evidence that Bonham failed to mention, or even misrepresent, the facts in his disciplinary report or that such omission led to Rosado's disciplinary charge. It is undisputed that the Benadryl pills were missing. The investigator's report and the medical report both indicated that the medicine was allegedly stolen. Furthermore, as mentioned above the record demonstrates that Bonham made his decision to charge Rosado for committing prohibited act *205 for credible reasons. Therefore, the hearing officer and the prison's Associate Administrator were fully aware of the reported theft and still found that disciplinary action was warranted.

Affirmed.