ANTONIO VEGA 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NOT FOR PUBLICATION WITHOUT THE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-1998-04T21998-04T2

ANTONIO VEGA,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________

 

Submitted January 19, 2006 - Decided February 2, 2006

Before Judges Conley and Winkelstein.

On appeal from the Department of Corrections.

Antonio Vega, appellant pro se.

Nancy Kaplen, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the letter-brief).

PER CURIAM

Appellant, an inmate at the East Jersey State Prison, appeals a final administrative determination by the Department of Corrections adjudicating him guilty of N.J.A.C. 10A:4-4.1(a)*.002, assaulting any person. We remand.

The corrections officer's and appellant's version of the alleged incident are not consistent. As reported by the corrections officer, as the officer entered "D" wing of tier "6-Right," appellant got out of his bed, walked towards the officer, raised his arm and pushed him. Appellant was thereafter subdued and charged with the infraction. But, according to appellant, he "never pushed the Officer, all he said to me was put your shoes on and go to the office." When he attempted to move past the officer, "he put his hand to avoid contact as he went by him. The contact was unintentional." Another inmate who witnessed the incident stated:

I was coming out of the shower. I saw [appellant] put his shoes on. I saw the office walk down the wing. [Appellant] got up to walk out of wing and that's all I saw. I saw no physical confrontation between anyone.

This, at least partially, corroborates appellant's statement. Credibility, therefore, was key.

On appeal, appellant contends his counsel substitute requested confrontation/cross-examination. Under the circumstances here, that should have been granted. Jones v. N.J. Dep't of Corr., 359 N.J. Super. 70, 76-77 (App. Div. 2003); Decker v. N.J. Dep't of Corr., 331 N.J. Super. 353, 359-60 (App. Div. 2000). See Gross v. N.J. Dep't of Corr., 167 N.J. 626 (2001). In its brief, however, the State asserts:

. . . at the hearing, [appellant] was offered an opportunity to confront and cross-examine adverse witnesses, but he declined the offer. Specifically, Line 15 of the adjudication report states that adverse witnesses were "offered, [but] inmate declined."

Finally, [appellant] was shown the adjudication sheets and the evidence utilized by the hearing officer, and his counsel substitute's signature on line 16 acknowledges that the information on lines 1 through 15 accurately reflect what took place at the disciplinary hearing. Thus, [appellant's] hearing comported with all procedural due process protections.

Were these factual assertions borne out by the record that has been provided us, we would have no hesitancy in agreeing that appellant was afforded the process he is due and that the adjudication, based as it obviously is upon the officer's version, was supported by sufficient evidence. Unfortunately, the record does not so support.

First, line 16 of the adjudication report in full reads:

16. Inmate or counsel substitute acknowledges that the information in lines 1-15 accurately reflects what took place at the inmate disciplinary hearing.

_________________________ ___________________

Printed name of inmate or Signature of inmate or counsel substitute counsel or substitute

If both the inmate and counsel substitute (if any) refuse to sign, reason stated for refusal if any:

_____________________________________________

Inmate and counsel substitute refused to sign:

[Signature of counsel

_____________________ Substitution

Printed name of Court- Signature of Court-

Line Officer Line Officer

That the counsel substitute obviously signed in the place for the Court-Line Officer does not mean that he intended to sign the acknowledgement of accuracy. It could just as well reflect an intention to sign the inmate and counsel substitute refusal line.

But of more concern to us is the State's assertion that line 15 states that adverse witnesses were "offered, [but] inmate declined." As far as we can discern from the handwritten report, the only word we can make out is the last one which appears to be "denied," not "declined."

Under the circumstances, we remand for a new hearing at which confrontation shall be afforded appellant. If he declines, so be it. If not, he shall be afforded an opportunity to confront and cross-examine the officer. We express no view as to the outcome in that event.

 
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

(continued)

(continued)

4

A-1998-04T2

February 2, 2006