MOSES VELEZ 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NOT FOR PUBLICATION WITHOUT THE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-3426-11T3

MOSES VELEZ,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________

November 13, 2013

Submitted October 7, 2013 Decided

Before Judges Ashrafi and Leone.

On appeal from the New Jersey Department of

Corrections.

Moses Velez, appellant pro se.

John J. Hoffman, Acting Attorney General,

attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Roshan D. Shah, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Moses Velez appeals from disciplinary sanctions imposed upon him for possession of a cell phone and a phone charger while in the custody of the New Jersey Department of Corrections (DOC) at a halfway house. We affirm.

On January 24, 2012, a counselor at the halfway house saw Velez standing on a bunk bed replacing a ceiling tile. Believing that Velez had concealed something in the ceiling, the counselor ordered the other occupants of the room to step out and Velez to come off the bed. Velez's response was to request that the counselor close the door so that they could talk privately. The counselor refused and turned his attention to finding assistance. Velez then reached into the ceiling, removed something, and came off the bed. The counselor saw "a black color wire (phone charger) wrapped with some kind of gadget that looked like a cell phone." He ordered Velez to hand over the items, but Velez walked out of the room and gave the items to another inmate, speaking in Spanish. The other inmate went into a bathroom and flushed the items down a toilet.

Velez was immediately transferred from the halfway house back to a prison. He received written notice of the charges the next day, January 25, 2012: disciplinary infractions for possession of an electronic communication device, a violation of Prohibited Act .009A, and refusing to obey an order, a violation of Prohibited Act .256. A hearing was conducted on January 31, 2012. At the hearing, Velez was assisted by counsel substitute. He presented a statement in his defense to the effect that he did not possess a cell phone. According to the hearing officer's report, Velez was offered the opportunity to confront adverse witnesses and to present any other witnesses of his own but declined to do so.

The hearing officer reviewed the supervising officer's disciplinary report and the incident report completed by the counselor. He also reviewed incident reports from three weeks earlier when Velez had flushed a wire phone charger down a toilet and then a cell phone had been confiscated from a concealed place in his clothing. The hearing officer found the incident reports in evidence to be specific and credible but found Velez's general denial not to be credible. He noted that a cell phone or other electronic device had not been recovered on January 24 but found it plausible that Velez handed the items to another inmate who then flushed them down a toilet. The other inmate was also charged and was separately found guilty of disciplinary infractions.

The hearing officer found substantial evidence supporting the charges and found Velez guilty of the two charges. He imposed sanctions totaling twenty-five days of detention, 180 days of administrative segregation, and 120 days loss of commutation time.

Velez filed an administrative appeal. He requested that the sanctions be modified because of a lack of physical evidence of his guilt and his clean prior disciplinary record. The administrative officer upheld the finding of guilt but reduced the sanctions to ten days of detention and 120-day loss of commutation time.

On appeal before us, Velez argues that the DOC did not conduct an adequate investigation of the incident, in particular, that it failed to search for and retrieve the alleged phone and charger from the toilet. He contends there was insufficient evidence to find him guilty of the charges, the disciplinary report was improperly prepared by an officer who did not witness the incident, and he was denied the right to confront the witnesses against him and to present testimony from his own witnesses.

In Avant v. Clifford, 67 N.J. 496, 523-24 (1975), the Supreme Court noted that a prison disciplinary proceeding is not a criminal prosecution and does not require the same due process protections as in criminal courts. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 499 (1972). The Court explained that the due process rights of New Jersey's inmates require: (1) written notice of the charges at least twenty-four hours before the hearing, (2) an impartial tribunal, which may be a superior officer from the central prison staff, (3) a limited right of the inmate to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses in appropriate cases, (5) a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) a limited right to the assistance of counsel substitute. Avant, supra, 67 N.J. at 525-39. Disciplinary action may be taken where the inmate's involvement in the infraction is supported by "substantial evidence." Id. at 530.

An appellate court will reverse the decision of an administrative agency only if it is arbitrary, capricious, or unreasonable. In re Taylor, 158 N.J. 644, 657 (1999). We can set aside sanctions only where an administrative agency has mistakenly exercised its discretion or misperceived its statutory authority. In re Polk, 90 N.J. 550, 578 (1982).

We reject Velez's contention that the DOC's investigation was inadequate and that the incident could not have occurred as alleged because the phone and charger were too big to flush down a toilet. There is no evidence that the toilet and plumbing at the halfway house could not pass a small phone and charger. Velez was caught flushing a phone charger down a toilet just a few weeks earlier while he was hiding a cell phone in his pants. The evidence before the hearing officer was sufficient for a finding of guilt on the basis of credible witness observation of Velez's conduct on January 24, 2012, and that of the other inmate to whom he handed the items he retrieved from the ceiling. His denials were not credible.

We reject Velez's argument that the disciplinary report was prepared in violation of N.J.A.C. 10A:4-9.1 because the counselor who witnessed the incident did not himself prepare the report. A disciplinary report may be prepared by a "staff member who witnessed" the infraction or one "who has probable cause to believe that" the infraction occurred. N.J.A.C. 10A:4-9.1(a). Here, a supervisor prepared the report based on probable cause provided by the counselor's oral and written reports of the incident he witnessed.

The record of the hearing also contradicts Velez's claim that he requested witnesses for his hearing, and that his proposed confrontation questions to adverse witnesses were not pursued. Furthermore, his own statement on the request for administrative appeal made no mention of a desire to call witnesses and to question adverse witnesses. He cannot raise claims of violation of his due process rights on appeal when he did not preserve those rights at the time of the disciplinary hearing and administrative appeal.

We find nothing arbitrary, capricious, or unreasonable in the proceedings, and no mistaken exercise of discretion or misperception of authority in imposing sanctions. Because appellant has not shown a violation of his due process rights, or an insufficiency of evidence, we affirm the administrative finding of guilt and the imposition of sanctions.