JOHNNIE DAVILA 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NOT FOR PUBLICATION WITHOUT THE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-4099-09T4

JOHNNIE DAVILA,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________

March 25, 2011

Submitted March 7, 2011 Decided

Before Judges Rodr guez and LeWinn.

On appeal from a final decision of the Department of Corrections.

Johnnie Davila, appellent pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jason S. Postelnik, Deputy Attorney General, on the brief).

PER CURIAM

Johnnie Davila, an inmate in the New Jersey State Prison system, appeals from the Department of Correction's (DOC) final administrative decision, finding him guilty of disciplinary infraction N.J.A.C. 10A:4-4.1 *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate such as, but not limited to, a cellular telephone, . . . ." Davila was also found guilty of prohibited act *.010, participating in an activity(ies) related to a security threat group (STG). However, he did not challenge that conviction in an administrative appeal to the Superintendent. We affirm.

Following a highly confidential Special Investigations Division (SID) investigation into inmate drug trafficking, cell phone usage, money transfers, and gang lifestyle and activities. Senior Investigator Raphael Dolce at Northern State Prison (NSP), prepared a report detailing his findings. One of the findings was that Davila had on several occasions possessed and used, without authorization, a cellular telephone while an inmate at NSP. This determination was based on information provided by a confidential informant.

Dolce also found that Davila mailed a letter containing known STG references to a civilian with the request that the civilian mail it to an inmate incarcerated in the Security Threat Group Management Unit (STGMU). Inmates in that unit cannot receive mail from other prisoners at NSP.

Based on his findings, Dolce brought the two disciplinary charges against Davila. Sergeant Poretti served the disciplinary matters on Davila and referred the charges to a hearing officer.

The disciplinary hearing began on March 1, 2010, but was postponed because the hearing officer needed information from the SID. The hearing was postponed four more times in order to wait for, and then review, information from the SID.

Davila requested an opportunity to confront Dolce and Principal Investigator Wojciechowicz, and for access to the transcripts of the alleged cellular telephone calls. Hearing Officer J. McGovern granted the two confrontation requests. Access to the transcripts was denied in order to protect the confidential informant's identity.

When an in-person confrontation/cross-examination of a witness is granted, the inmate or counsel substitute submits written questions to the hearing officer, who reviews them to ensure that they are relevant and non-harassing. The witness then appears in person at the hearing. The hearing officer reads the written questions aloud in the presence of the inmate. The witness answers. After the questions are asked and answered, the inmate and/or counsel substitute is provided an opportunity to submit follow-up questions. For safety and security reasons, the inmate is not permitted to directly question the witness.

McGovern rescinded the permission to confront Wojciechowicz because he was not the primary investigator. The questions Davila submitted to Wojciechowicz were the same as those directed to Dolce.

At the hearing, Davila requested the assistance of counsel substitute. This was granted. Davila pled not guilty to both charges. McGovern reviewed the February 25, 2010 SID report; the Pre-Hearing Detention Placement Authorization; photocopies of the envelop and letter Davila sent containing STG references;

the Seizure of Contraband Reports; and the SID STG Evidence Review Form. In addition, Dolce made statements supporting the charges at the hearing.

Davila stated he was not guilty. He argued that there was no evidence as to the *.010 disciplinary charge. Counsel substitute argued for leniency and submitted a written statement, suggesting there were due process violations. McGovern ruled that the suggestion had no merit.

McGovern concluded the evidence demonstrated Davila's guilt of both charges, and imposed the following sanctions on the *.009 charge: 15 days' detention, consecutive to his current detention time; 365 days' administrative segregation, consecutive; 365 days' loss of commutation time, consecutive; permanent loss of contact visits; 365 days' loss of telephone privileges; and a referral to the prosecutor's office for possible criminal charges. On the *.010 charges, McGovern imposed the following sanctions: 15 days detention; 365 days administrative segregation; and 365 days of loss of commutation time.

Davila appealed to the Superintendent, challenging the finding of guilty of the *.009 charge, but acknowledging guilt of the *.010 charge. He simply requested leniency on the sanction for that charge. Assistant Superintendent J. Drumm upheld the findings and sanctions.

On appeal, Davila contends:

AT THE DISCIPLINARY HEARING ON MARCH 15, 201, SID R. DOLCE IN CONTRAVENTION OF N.J.A.C. 10A:4-9.14(b) AND 9.13(a) REFUSE TO ANSWER THE QUESTIONS THAT WERE THE MOST GERMANE TO THE DEFENDANT-APPELLANT'S DEFENSE. THE CHALLENGE OF THE DEFENDANT-APPELLANT, WAS THAT HE WAS "NOT" HOUSED AT NORTHERN STATE PRISON DURING THE TIME-FRAME OF THE CELL-PHONE INVESTIGATION NOR ITS SEIZURE, AND THAT DEFENDANT-APPELLANT EXERCISED NO CONTROL OVER THE CELL-PHONE IN QUESTION. THE HEARING OFFICER REFUSED DEFENDANT-APPELLANT TO CONFRONT INVESTIGATOR WOJCIECHOWICZ AFTER HE FIRST GRANTED THE CONFRONTATION. AS A RESULT DEFENDANT-APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED.

We disagree.

The scope of our review of the final determination of a State agency, such as the DOC, is limited. Moore v. DOC, 335 N.J. Super. 103, 110 (App. Div. 2000). Here, the record establishes that the disciplinary determinations from which the appeal was taken were based upon substantial credible evidence. N.J.A.C. 10A:4-9.15(a); McDonald v. Pinchak, 139 N.J. 188, 205 (1995); Moore, supra, 335 N.J. Super. at 110. Accordingly, we find no basis upon which to disturb the findings and conclusions reached on the totality of the evidence.

Our review has also included examination of the process and procedures afforded Davila by the DOC to contest the charges and to present a defense. Here again, we conclude that these procedures insured an appropriate level of rights generally accorded to prison inmates as determined by law. McDonald, supra, 139 N.J. at 195; Avant v. Clifford, 67 N.J. 496, 523 (1975).