VITOR LOPEZ 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NOT FOR PUBLICATION WITHOUT THE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-1773-07T21773-07T2

VITOR LOPEZ,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

__________________________________________

 

Submitted October 22, 2008 - Decided

Before Judges Cuff and Fisher.

On appeal from the New Jersey Department of Corrections.

Vitor Lopez, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attor-ney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Vitor Lopez, an inmate currently serving a six-year term at New Jersey State Prison, was found to have committed two disciplinary offenses in violation of N.J.A.C. 10A:4-4.1: (a) .701, misuse of mail or phone, for which he received a one-year loss of phone privileges, and (b) *.005, threatening bodily harm, for which he received fifteen days detention, 365 days administrative segregation, 365 days loss of commutation credit and a 30-day loss of phone privileges.

The hearing officer was provided with evidence, largely through an investigator's report, which indicated appellant had defeated departmental controls designed to monitor and curtail inmate phone usage and, with another inmate's prisoner identification number (PIN), made a threatening phone call to a civilian. Tapes of that phone call as well as others were also made part of the record. Appellant did not request the right to confront witnesses, nor did he testify.

After considering the evidence, including the content of the recorded phone calls, the hearing officer concluded

there is substantial evidence to support that [appellant] was an active participant in a conspiracy to threaten members of the general public. Additionally, in light of the fact that [appellant] is [a] validated member of the STG "Bloods" he does maintain the ability and resources to carry out the threat. Additionally, since [appellant] used the inmate phone system to commit the infraction and used another inmate's PIN number . . . there is substantial evidence to support that [appellant] misused the inmate telephone system.

Appellant filed an administrative appeal. The Department of Corrections upheld the hearing officer's determination.

In appealing the final agency decision, appellant presents the following arguments for our consideration:

I. DUE PROCESS DEMANDS THAT APPELLANT BE CONFRONTED WITH WITNESSES AGAINST HIM.

II. [THE HEARING OFFICER] RELIED ON INSUF-FICIENT EVIDENCE TO WARRANT A FINDING OF GUILT.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

In his first point, appellant argues he was denied due process because the recipient of the telephone call in question was not called as a witness and subjected to confrontation, and because the investigator did not obtain a statement from the recipient of the phone call. We disagree. Inmates in this setting are not entitled to the full spectrum of rights that are due to an individual accused of a crime. Avant v. Clifford, 67 N.J. 496, 522 (1975). This is because of the need to "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald v. Pinchak, 139 N.J. 188, 202 (1995). As we have indicated, the evidence before the hearing officer included a recording of the phone call in question. Accordingly, the actual content of the call in question was not a matter of dispute -- the actual words spoken were revealed by the recordings. As a result, a statement or testimony from the call's recipient would have been cumulative, and, for that reason, its absence was insufficient to support the claim of a due process deprivation.

In his second point, appellant argues the charges against him were not proven because there was no evidence to support the finding that he made the call in question. We reject this because appellant has acknowledged he made the call. For example, in his administrative appeal, appellant admitted he made the August 11, 2007 phone call, arguing in mitigation that he was "relaying a message from another prisoner in that prisoner's words." In the brief filed with this court, appellant stated that he "called [the civilian] to explain an earl[ier] call for another inmate."

In light of appellant's concessions, in disposing of the *.005 charge, the hearing officer was left to consider only the question of whether the call's content was threatening. The hearing officer was entitled to conclude from the substantial evidence in the record that the message was threatening and was entitled to reject appellant's contention, which was unsupported by any evidence, that a person familiar with "street slang" would have understood the message was not threatening.

Appellate courts will intervene only when an agency's decision is arbitrary, capricious or unsupported by substantial credible evidence in the record. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The hearing officer's findings were based upon substantial evidence and, therefore, are entitled to our deference.

Affirmed.

In monitoring earlier threatening calls made by other inmates, the Department became aware of the call in question made by appellant on August 11, 2007.

The hearing was adjourned for a few days to provide the hearing officer with time to listen to the recordings.

(continued)

(continued)

5

A-1773-07T2

November 3, 2008