CHRISTOPHER DEMUNGUIA v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHRISTOPHER DEMUNGUIA,

Plaintiff-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Defendant-Respondent.

_______________________________

October 4, 2013

Submitted September 18, 2013 - Decided

Before Judges Lihotz and Maven.

On appeal from the New Jersey Department of Corrections.

Christopher DeMunguia, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).

PER CURIAM

Christopher DeMunguia, an inmate at New Jersey State Prison, appeals from a February 14, 2012 final administrative decision of the Department of Corrections (DOC) adjudicating him guilty of institutional infractions *.004, fighting with another person; and *.306, conduct which disrupts the orderly running of the institution, N.J.A.C. 10A:4-4.1(a). DeMunguia appeals, arguing:

THE DEPARTMENT'S FINAL DECISION MUST BE REVERSED BECAUSE DEMUNGUIA DID NOT RECEIVE ALL PROCEDURAL DUE PROCESS DURING HIS DISCIPLINARY HEARING, HIS ASSIGNED COUNSEL SUBSTITUTE WAS INEFFECTIVE, AND THE FINDING OF GUILT IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE. (Not raised below.)

We reject these contentions and affirm.

On February 9, 2012, while housed in Mid-State Correctional Facility, DeMunguia engaged in a physical altercation with another inmate. Senior Corrections Officer Robert Dekis observed two inmates throwing punches and kicking each other during recreation. As a result, Officer Dekis initiated a Code 33 distress call, signaling an emergency situation and alerting other corrections officers to respond and assist in securing personnel and restoring order. After DeMunguia and the fellow inmate ignored Officer Dekis's orders to cease fighting, corrections officers separated the inmates.

The charges were delivered to DeMunguia and his request for counsel substitute was granted. In a courtline hearing held on February 10, 2012, DeMunguia appeared before a hearing officer and pleaded guilty. When asked he declined to make a statement. The hearing officer reviewed the uncontroverted staff reports and a medical report for a hand injury DeMunguia suffered in the fight. The hearing officer found DeMunguia guilty of the charges and sanctioned him to fifteen days detention with credit for time served, 365 days administrative segregation and 180 days loss of recreational privileges for the *.004 violation and fifteen days detention with credit for time served, 300 days administrative segregation and 300 days loss of commutation time for the *.306 violation.

DeMunguia requested an administrative appeal, seeking leniency. The sanctions, reviewed by the Classification Committee and the Assistant Superintendent of Prisons, were upheld. This appeal followed.

The scope of our review of an agency decision is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Service, 39 N.J 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). "Our role is to engage in a 'careful and principled consideration of the agency record and findings.'" DeCamp v. Dep't of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (quoting Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (other citations omitted)). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry, supra, 81 N.J. at 579-80).

On appeal, DeMunguia suggests he was denied procedural safeguards. However, he focuses his argument on the sanctions, which he asserts were excessive in light of his disciplinary history. He further suggests his conduct was a result of self-defense and counsel substitute was ineffective.

Following our review of the record, we determine there is substantial, credible evidence of DeMunguia's guilt, Henry, supra, 81 N.J. at 580; and that, as a matter of fairness, he was provided adequate due process protections in the filing, processing and hearing of the charges against him. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975).

As to DeMunguia's claim of ineffective assistance of counsel substitute suggesting counsel substitute was young, inexperienced, and "barely spoke English and seemed more nervous to be on [c]ourtline than [DeMunguia,]" suffice it to say, he never raised the issue below, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). DeMunguia was fully aware of his right to request confrontation or make a statement. Indeed, he admits he chose to "throw [him]self on the mercy of the courtline" and not make a statement.

Finally, the Classification Committee approved the administrative segregation sanctions and the Administrative Director upheld on administrative appeal the loss of commutation time. When a prisoner is found guilty of an asterisk disciplinary offense, applicable regulations allow imposition of administrative segregation for up to one year if confirmed by the Classification Committee, N.J.A.C. 10A:4-5.1(a)(3), and loss of commutation time for up to one year, subject to confirmation by the Administrator, N.J.A.C. 10A:4-5.1(a)(4). Absent demonstration of deviation from the applicable guidelines, we have no basis to interfere.