LORENZO BARRENECHEA 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NOT FOR PUBLICATION WITHOUT THE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-5695-07T35695-07T3

LORENZO BARRENECHEA,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted September 30, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from a Final Decision of the

Department of Corrections.

Lorenzo Barrenechea, appellant pro se.

Anne Milgram, Attorney General, attorney

for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel;

Keith S. Massey, Jr., Deputy Attorney

General, on the brief).

 
PER CURIAM

Appellant Lorenzo Barrenechea, an inmate at East Jersey State Prison, appeals from a final decision of the Department of Corrections (DOC) adjudicating him guilty of prohibited act *.704, perpetrating a fraud, N.J.A.C. 10A:4-4.1. Following a hearing, appellant was sanctioned 15 days detention, 300 days of loss of commutation credit and 300 days of administrative segregation. On the administrative appeal, the Commissioner's office affirmed the hearing officer's findings and sanctions. Appellant appealed, and we affirm.

These are the relevant facts adduced from the record. On May 15, 2008, the Special Investigations Division (SID) at East Jersey State Prison recorded a telephone conversation between Barrenechea and Melissa Gell, his fiancée. In that conversation, Gell told Barrenechea that she was being investigated by the State Commission on Investigation. Barrenechea said that it would "go on him" and that he was receiving money from other inmates in exchange for providing legal work.

In June 2008, SID reviewed the record of outgoing inmate payments. More than forty inmates had sent money to Justina Hidalgo, with an address in Elizabeth, New Jersey and a post office box in Rahway, New Jersey. SID then ascertained that Justina Hidalgo was the mother of and resided with Melissa Gell, who was listed on Barrenechea's visitor list as his fiancée. Gell and Hidalgo had opened a post office box together in January 2008. SID's review of records from that time period showed that fifty-eight payments had been made to Gell and Hidalgo.

Based on the telephone conversation and the number of inmates sending money to Gell and Hidalgo, SID determined that appellant was perpetrating a fraud in order to obtain money from other inmates by charging them for legal work and then having the money sent to Gell outside the institution to circumvent institutional rules regarding transfer of money between inmates. Investigator Kevin Koch charged appellant with violating prohibited act *.704, perpetrating a fraud, and appellant was placed in pre-hearing detention.

Following service of the charges on June 6, 2008, appellant declined to make a statement or identify witnesses. He did request counsel substitute and appeared before a hearing officer on June 9, 2008; however, the hearing was adjourned to allow review of the relevant reports. The hearing was continued on June 27, 2008, where appellant appeared with counsel substitute and made a statement indicating that appellant's conversations with Gell were misinterpreted. He indicated that the checks were actually gifts for prior legal work. The hearing officer rejected appellant's testimony and adjudicated appellant guilty.

On appeal, appellant asserts:

LEGAL ARGUMENT

POINT I

Finding of guilt did not meet nor was based on standard requirement of substantial evidence as defined in N.J.A.C. 10A:4-9.15 therefore Appellants guilty finding should be reversed and dismissed.

POINT II

Appellants due process rights were violated due to;

a; Courtlines failure to adhere to time limitations, N.J.A.C. 10A:4-9.7, 8, and 9.

b; Failure to provide Appellants request for documented evidence, N.J.A.C. 10A:4-9.13.

c; Refusing Appellants right to call witnesses, cross-examine and obtain inmate statements, N.J.A.C. 10A:4-9.13 and 14.

d; Failure to allow Appellant to participate in disciplinary hearing, N.J.A.C. 10A:4-9.10.

e; Cumulative effects of courtline hearing officer's errors, and therefore Appellants guilty finding and sanctions should be reversed and dismissed.

POINT III

Failure to submit cohesive, rational response to legitimate complaints raised by Appellant on appeal and failure to investigate N.J.A.C. 10A:4-11.4.

POINT IV

Appellants state and federal constitutional rights to freedom of association were violated as a result, and therefore administrative decision to permanently ban Appellants fiancée should be reversed and dismissed.

We have carefully reviewed the record and conclude that appellant's arguments are without merit. R. 2:11-3(e)(1)(E). We add the following comments.

Prison disciplinary hearings are not a criminal prosecution and the full spectrum of rights due to a criminal defendant do not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). However, prisoners are entitled to certain limited protections prior to being subject to disciplinary sanctions. These rights, defined in Avant, supra, include:

(1) Written notice of the charges at least twenty-four hours prior to the hearing;

(2) An impartial tribunal that may consist of personnel from the central office staff of the Department of Corrections;

(3) A limited right to call witnesses and present documentary evidence in defense of the charges;

(4) A limited right to confront and cross-examine adverse witnesses;

(5) A right to a written statement of the evidence relied upon and the reasons for the sanctions imposed;

(6) Where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute.

[Id. at 525-33.]

The procedural due process requirements articulated in Avant were reaffirmed by the New Jersey Supreme Court. See McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stephens, 139 N.J. 212 (1995). The Court found that the current regulations "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, supra, 139 N.J. at 202.

Here, the requirements alluded to in Avant were met. Appellant received timely notice of the charges and a prompt initial hearing. N.J.A.C. 10A:4-9.8(c) (requiring a hearing within three days of placement in pre-hearing detention unless, as here, the third day falls on a weekend). The hearing officer was entitled to delay the hearing for a short and reasonable time to allow consideration of the extensive reports and investigation without prompting a dismissal. N.J.A.C. 10A:4-9.9. The hearing was conducted before an impartial tribunal in the presence of a counsel substitute and appellant was given the opportunity to proffer both an oral and written statement. He did so. Although, he had a similar opportunity to present witnesses, he chose not to do so, despite his claim to the contrary. Appellant was offered the opportunity to confront the witnesses and also declined to do so. Finally, counsel substitute acknowledged, as part of the record, the hearing officer's rendition of what took place at the hearing.

Appellate courts have a limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. In re Taylor, 158 N.J. 644, 656-57 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The relevant standard of review is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering the 'proofs as a whole . . . .'" In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964))). In appeals concerning prison infractions, our focus must be on whether an adjudication of guilt is supported by "substantial evidence." Avant, supra, 67 N.J. at 530; see also McDonald, supra, 139 N.J. at 195-96.

The record before us provides sufficient credible evidence to support the hearing officer's findings as affirmed by the Assistant Superintendent. The evidence presented to the hearing officer supported the finding that appellant was receiving monies improperly and using his fiancée and her mother as improper conduits for such payments. Appellant's explanation was deemed incredible and nothing in the record contradicts that critical finding.

Finally, appellant asserts that his constitutional rights have been denied as a result of the DOC's decision to preclude Gell from visiting appellant. In a related appeal, Barrenecea v. Department of Corrections, A-0442-08T3, decided August 21, 2009, we upheld the Department's revocation of Gell's visiting privileges as a result of the conduct related to this appeal. Any claims regarding that decision are not properly before us here.

Affirmed.

(continued)

(continued)

2

A-5695-07T3

October 14, 2009