EDDIE JAVIAR 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NOT FOR PUBLICATION WITHOUT THE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-4720-06T34720-06T3

A-6432-06T3

EDDIE JAVIAR,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________

 

Submitted November 17, 2008 - Decided

Before Judges Lisa and Reisner.

On appeal from a Final Agency Decision of the Department of Corrections.

Eddie Javiar, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, and Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

In these two appeals, which we have consolidated for purposes of this opinion, Eddie Javiar, an inmate serving a thirty-year sentence for murder and unlawful weapons possession, challenges disciplinary action imposed by the Department of Corrections (DOC). We affirm.

Both appeals arise from the same set of facts. In 2005, the DOC discovered a widespread conspiracy in which inmates at the New Jersey State Prison were sending funds to a specified address and in return were obtaining various contraband, including cell phones, drugs, weapons and escape paraphernalia which were being smuggled into the prison system. Through information from a confidential informant, the DOC learned that Javiar was participating in the conspiracy by telling other inmates how to get the contraband and particularly, where to send the funds. DOC also learned that more than $85,000 had been sent by inmates to addresses at which Javiar's relatives lived.

Because the conspiracy was considered a significant threat to the institution's security, Javiar, as a suspected participant, was placed in the Management Control Unit (MCU), a highly secure area of the New Jersey State Prison, before he was given a hearing on the underlying disciplinary charges. Following a hearing on the disciplinary charges, Javiar was found guilty of prohibited act *.803/*.306 attempting to commit conduct that disrupted the security of the institution. See N.J.A.C. 10A:4-4.1(a). He was found not guilty of distributing drugs, soliciting funds from other inmates and operating a business for profit. The following discipline was imposed based on that finding: 15 days detention with credit for time served, 365 days loss of commutation time, and 365 days administrative segregation. Javiar also remained in the MCU, subject to periodic hearings to review his placement there.

Javiar challenges both his placement in the MCU and the finding of guilt on the charge of disrupting institutional security. As to both appeals, we must affirm the DOC's determinations so long as they are supported by sufficient credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Judged by that standard, we find no basis to disturb either decision.

We first address Javiar's challenge to the outcome of his disciplinary hearing. Javiar raises the following points for our consideration:

POINT I: THE FINAL AGENCY DECISION WHICH FOUNDED APPELLANT GUILTY OF VIOLATING PROHIBITED ACT *803/*306 WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND VIOLATED APPELLANT'S RIGHT TO DUE PROCESS.

POINT II: THE HEARING OFFICE'S FAILURE TO EXPLAIN WHY SHE FOUND CONFIDENTIAL INFORMANT'S RELIABLE VIOLATED N.J.A.C. 10A:4-9.15(b)(1)(i)(ii) AND APPELLANT'S RIGHT TO DUE PROCESS.

POINT III: THE ADMINISTRATOR OF NEW JERSEY STATE PRISON SHOULD HAVE GRANTED APPELLANT A NEW HEARING WHEN IT WAS REVEALED THAT INFORMATION REGARDING 5 INFORMANTS WAS NOT PROVIDED TO APPELLANT DURING HIS HEARING.

POINT IV: THE AGENCY DECISION TO START THE DISCIPLINARY HEARING WITH ONE HEARING OFFICE, THEN FINISH WITH ANOTHER HEARING OFFICE VIOLATED THIS COURT'S MANDATES IN RATTI V. DEPARTMENT OF CORRECTIONS.

Having reviewed the record, we conclude that Javiar's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

Javiar argues in essence that he could not be found guilty of the disruption charge if he was found not to have committed the other offenses of which he was accused. We disagree. According to confidential informants, Javiar was involved in a conspiracy to bring contraband into the prison. His part was to provide other inmates with information about where they could get the contraband and where to send their money, although he did not distribute the contraband himself. Even if the hearing officer determined that there was insufficient evidence to find Javiar guilty of actually possessing or distributing contraband, there was sufficient evidence to find him guilty of participating in the conspiracy and hence of threatening institutional security.

Javiar also contends that he was not given information about the confidential informants until after the hearing and therefore he is entitled to a new hearing. However, in his appeal from the hearing officer's decision, Javiar admitted he was given this information. We also find no merit in his objection to the DOC substituting a new hearing officer after the first scheduled hearing date. Unlike Ratti v. Department of Corrections, 391 N.J. Super. 45, 47-48 (App. Div. 2007), in this case no testimony was taken by either of the hearing officers, and the new hearing officer had all the evidence before him. Moreover, the hearing officer's decision is sufficiently specific about information provided by the confidential information to satisfy the requirements of N.J.A.C. 10A:4-9.15(b). Based on our review of the record, the agency's decision is supported by sufficient credible evidence and Javiar's claims of legal error are without merit. R. 2:11-3(e)(1)(D). We affirm the finding of guilt on the disruption charge, memorialized in the DOC's January 18, 2007 decision.

We next turn to Javiar's appeal of his placement into the Management Control Unit. The placement occurred on November 30, 2006, during the investigation which resulted in the charges in the first appeal. Javiar received a hearing on the MCU placement, and the prison administrator issued a decision on February 20, 2007 upholding the placement. On this appeal, Javiar raises the following arguments:

POINT I: THE FINAL ADMINISTRATIVE AGENCY DECISION ON FEBRUARY 20, 2007 THAT PLACED APPELLANT INTO THE HIGHLY RESTRICTIVE MANAGEMENT CONTROL UNIT VIOLATED THE GUIDELINES WHICH ARE ESTABLISHED IN UNIV. COTTAGE CLUB VS. N.J. DEP'T OF ENVTL. PROT., 191 N.J. 38, 48, (2007) AND IN RE V. TAYLOR, 148 N.J. 644, 657 (1999).

A. Violation of N.J.A.C. 10A:5-2.1(a).

B. Violation of N.J.A.C. 10A:5-2.3(a)(1).

B. Violation of N.J.A.C. 10A:4-9.26(a).

POINT II: THE AGENCY DECISION WHICH PLACED APPELLANT ONTO THE MANAGEMENT CONTROL UNIT ON JANUARY 29, 2007 WASN'T SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD, THUS VIOLATING THE PROVISIONS WHICH ARE ESTABLISHED BY N.J.A.C. 10A:5-2.6(b)(3) AS WELL AS UNIV. COTTAGE CLUB V. N.J. DEP'T OF ENVTL. PROT., 191 N.J. 38, 48 (2007) & IN RE V. TAYLOR, 158 N.J. 644, 657 (1999).

A. November 2, 2006 Informant Qualification.

POINT III: THE AGENCY FAILURE TO CONDUCT AN INDEPENDENT ASSESSMENT INTO THE INFORMATION DERIVED FROM FIVE CONFIDENTIAL INFORMANTS WAS CONTRARY TO THE LEGISLATORS INTENT OF N.J.A.C. 10A:5-2.6(i) AND THE FINDINGS OF SIRA V. MORTON, 380 F.3d 57 (2004).

POINT IV. THE HONORABLE JACK L. LINTER, P.J.A.D. MAY 30, 2008 ORDER WHICH DENIED APPELLANT'S MOTION TO SETTLE THE RECORD WAS ERRONEOUSLY DENIED BASED ON FINDINGS CONTRARY TO N.J.A.C. 10A:5-2.10(e).

We find no merit in these contentions, R. 2:11-3(e)(1)(E), but we add the following comments.

Javiar contends that the placement was not recommended by the correct prison official, pursuant to N.J.A.C. 10A:5-2.1(a). However, the record reflects that the placement was properly authorized by Assistant Superintendent Al Kendall. Reflecting the same basic arguments he raised in the first appeal, Javiar also claims the placement was improperly based on charges that were dismissed. We conclude that, in light of the massive conspiracy in which he participated, the charge of which he was found guilty (disrupting the institution) was sufficient to justify the placement in MCU. Accordingly, we affirm Javiar's placement in the MCU.

Nothing in our decision precludes Javiar from filing an appeal of any future DOC placement review, should that review result in a determination that Javiar must remain in the MCU. See N.J.A.C. 10A:5-2.3(a)(2), -2.10(a) (mandating placement review every three months).

Affirmed.

Appellant claims that the placement date was November 20, 2006. However, even if he were correct this would not change our decision.

Javiar claimed he did not receive the decision until July 2007. We initially dismissed his appeal as untimely, but the Supreme Court remanded the matter to us with direction to entertain the appeal on its merits. Accordingly, we have done so.

(continued)

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A-4720-06T3

December 5, 2008