DUARTE CAETANO 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NOT FOR PUBLICATION WITHOUT THE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-3249-05T53249-05T5

DUARTE CAETANO,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent-Respondent.

____________________________________________________________

 

Submitted July 12, 2006 - Decided August 2, 2006

Before Judges Fuentes and Graves.

On appeal from a Final Agency Decision of

the Department of Corrections.

Duarte Caetano, appellant pro se.

Zulima V. Farber, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Sean M. Gorman,

Deputy Attorney General, on the brief).

PER CURIAM

Duarte Caetano, a state prison inmate, appeals from a final administrative decision of the Department of Corrections imposing disciplinary sanctions for committing prohibited acts *.005, threatening another person with bodily harm, and *.803/*.002 attempting to assault another person, in violation of N.J.A.C. 10A:4-4.1(a).

On appeal, Caetano makes the following arguments:

POINT 1

THE DECISION OF THE HEARING OFFICER VIOLATES DUE PROCESS AND SHOULD BE MODIFIED.

POINT 2

THE DECISION OF THE HEARING OFFICER SHOULD BE MODIFIED BECAUSE THE DECISION WAS NOT BASED UPON SUBSTANTIAL CREDIBLE EVIDENCE.

POINT 3

THE HEARING OFFICER'S DECISION FAILED TO ARTICULATE FACTS ESTABLISHING THE APPELLANT'S GUILT.

POINT 4

A MERE WRITTEN CHARGE BY A CORRECTIONAL OFFICER IS NOT ENOUGH TO SUBSTANTIATE INMATE GUILT.

After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm. R. 2:11-3(e)(1)(D). We are satisfied that Caetano received all of the procedural due process protections to which he was entitled. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975); see also Jacobs v. Stephens, 139 N.J. 212, 217-22 (1995); McDonald v. Pinchak, 139 N.J. 188, 193-203 (1995). We add only these brief comments.

The charges against Caetano arose from an incident on December 25, 2005. At approximately 7:10 p.m., Senior Corrections Officer Davis reported that she heard Caetano yell down the tier, "Merry fucking Christmas, bitch." When Officer Davis approached Caetano's cell to tell him to stop yelling, Caetano yelled, "I'm going to fuck you up, bitch." He then thrust his arm out of his cell in an attempt to grab Officer Davis, but she "fell back" to avoid being struck in the face. As Officer Davis moved away from Caetano's cell, Caetano yelled: "Fuck you. Fuck you, you black bitch."

Caetano was served with the charges and read his use immunity rights at approximately 9:00 p.m. on December 25, 2005. Caetano pled not guilty, and, at his request, he was assigned counsel substitute to assist in his defense. At the disciplinary hearing, Caetano stated "this did not happen," and he requested witness statements from inmates Lamosa, Fowler, and Palmarini. Lamosa and Fowler declined to make a statement, but inmate Palmarini provided the following written statement: "[Caetano] was singing and did not assault any officer. He was just singing, I had seen the hole (sic) thing." Caetano was given the opportunity at the disciplinary hearing to call witnesses on his behalf and to confront/cross-examine adverse witnesses, but he declined to do so.

Contrary to the assertions in his brief, it is clear from the record that Caetano never requested a polygraph examination during either the adjudication hearing or his administrative appeal. There is no mention of a request for a polygraph examination in the Adjudication of Disciplinary Charge reports, and Caetano's counsel substitute signed line sixteen of the reports acknowledging that "the information in lines 1-15 accurately reflects what took place at the inmate disciplinary hearing." And there is no mention of a request for a polygraph examination in Caetano's administrative appeal. Because there was no request for a polygraphic examination during the course of the administrative proceedings, the failure to administer such a test did not "impair the fundamental fairness of the disciplinary proceeding." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005).

On line twelve of the adjudication reports, the hearing officer lists the evidence she relied on in determining Caetano's guilt. This evidence included: Preliminary Incident Report; Authorization for Pre-Hearing Detention; Special Report, Officer Davis; Special Report, Sgt. Slough; Special Report, Officer Andrade; Special Report, Officer Troche; and Medical Report. Furthermore, the hearing officer concluded that Officer Davis had "nothing to gain" by fabricating the charges, but inmate Palmarini "could be covering for [inmate] Caetano."

A finding of guilt at a disciplinary hearing must be supported by "substantial evidence." Avant, supra, 67 N.J. at 530; N.J.A.C. 10A:4-9.15(a). Substantial evidence is "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 Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).

The scope of our review is limited. "Ordinarily, an appellate court will reverse the decision of [an] 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) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); accord Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). "We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005). Based on our review of the record, we are satisfied there is substantial credible evidence to support the final decision of the Department of Corrections.

Affirmed.

 

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A-3249-05T5

August 2, 2006