MICHAEL FUSCALDO 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NOT FOR PUBLICATION WITHOUT THE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-0

MICHAEL FUSCALDO,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

___________________________________

May 13, 2014

Submitted April 30, 2014 Decided

Before Judges Waugh and Nugent.

On appeal from the New Jersey Department of Corrections.

Michael Fuscaldo, appellant pro se.

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

PER CURIAM

Appellant Michael Fuscaldo, who is currently incarcerated1 at New Jersey State Prison (NJSP) in Trenton, appeals from the final administrative decision of the Department of Corrections (DOC) finding him guilty of disciplinary infraction .701, unauthorized use of mail or telephone; and *.704, perpetrating frauds, deceptions, confidence games, riots, or escape plots, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

We discern the following facts and procedural history from the record on appeal. As the result of a larger investigation by NJSP's Special Investigation Division, Fuscaldo was alleged to have conspired with other inmates to develop and implement a plan to obtain narcotics and smuggle them into the prison. Fuscaldo, who is not a veteran, improperly obtained passes to access a balcony area set aside for a veterans group so he could confer with his coconspirators. One of them was intercepted using Fuscaldo's telephone PIN number to contact a member of Fuscaldo's family.

Fuscaldo was charged on October 2, 2012. The following day, he appeared before a hearing officer, who granted his request for the assistance of a counsel substitute. The hearing was postponed several times so that the hearing officer could review the confidential reports2 on which the charges were based, and to accommodate Fuscaldo's request for an opportunity to obtain statements of several witnesses and for confrontation of the complaining investigator. In addition, Fuscaldo requested time to prepare a written summation.

The hearing resumed on October 18. Fuscaldo and his counsel substitute submitted oral and written arguments, in addition to witness statements and the results of the confrontation with the investigator. The hearing officer also had access to the confidential information and a recording of the coconspirator's telephone conversation with Fuscaldo's family member.

The hearing officer found Fuscaldo guilty and summarized her findings in writing. She imposed consecutive sanctions on each charge, for an aggregate of thirty days of detention, with credit for time served, 455 days of administrative segregation, 425 days loss of commutation time, and 365 days loss of telephone privileges. Fuscaldo filed an administrative appeal. The assistant superintendent upheld the hearing officer's findings and sanctions. This appeal followed.

On appeal, Fuscaldo presents numerous arguments alleging that he was denied due process, that the charges against him were not supported by substantial evidence, that the decision was against the weight of the evidence, that the charges were improperly amended at the beginning of the hearing, and that he did not receive sufficient notice that some conduct was prohibited.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Substantial evidence is "'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).

Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). The DOC must facilitate an informal hearing to ensure that disciplinary findings are based upon verified facts and the use of discretion is informed by accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that the DOC's regulations for disciplinary hearings "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." Id. at 202.

Our review of the record before us in light of the applicable law convinces us that Fuscaldo's arguments are without merit. Although they do not warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), we add the following.

Fuscaldo received the level of due process required by Avant. He received written notice prior to the hearing, at which the hearing officer amended the charges to correlate the alleged conduct with the proper offense designation. See N.J.A.C. 10A:4-9.16. Fuscaldo was assigned a counsel substitute and given the opportunity to obtain witness statements and confront the investigator. The hearing officer summarized the confidential report. See N.J.A.C. 10A:4-9.15. The investigator provided sufficient information about the confidential informant, ibid., whose information was subsequently verified by the internal investigation. Although there were delays in the holding of the hearing, they were justified and, in some cases, beneficial because they allowed Fuscaldo to prepare his defense. Under the circumstances of the case, the length of Fuscaldo's pre-hearing detention was not unreasonable. The hearing officer provided a written statement setting forth his reasons.

Because the constitution of the veterans group clearly states that it is open to "any veteran of the military service," we find no merit in Fuscaldo's claim that he was not on notice that he could not belong to the group. He was not a veteran and, consequently, not eligible for membership. He used the group's pass for the purpose of engaging in other improper conduct. He cannot reasonably have thought it was permissible to do so.

We are further convinced that the finding of guilt was not arbitrary or capricious, but was supported by substantial, credible evidence in the record. The sanctions imposed were not excessive.

Affirmed.

1 Fuscaldo is serving a life sentence for murder and weapons offenses, and is subject to a thirty-year minimum period of incarceration prior to parole eligibility.

2 The hearing officer gave Fuscaldo a non-confidential summary of the investigation reports.