JOHNNY MONTANEZ 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NOT FOR PUBLICATION WITHOUT THE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

JOHNNY MONTANEZ,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________________

October 8, 2015

Submitted September 24, 2015 Decided

Before Judges Ostrer and Manahan.

On appeal from the New Jersey Department of Corrections.

Johnny Montanez, appellant pro se.

John J. Hoffman, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Carmeryn J. Hinton, Deputy Attorney General, on the brief).

PER CURIAM

Johnny Montanez appeals from a final determination of the Department of Corrections (DOC), adjudicating him guilty of disciplinary infraction .013, unauthorized physical contact, N.J.A.C. 10A:4-4.1. Following our review of the record in light of the applicable law, we affirm.

This matter arises from an incident on July 23, 2014, at Southern State Correctional Facility. Two officers heard scuffling and banging coming from the B wing. The officers observed appellant and another inmate "grappling" with one another. Both inmates immediately complied when ordered to stop and were subsequently handcuffed. A "Code 33" was called and both inmates were placed in pre-hearing detention.

Appellant requested and was granted the assistance of counsel substitute. Appellant asserted in a written statement that the inmates were not fighting but were in an argument. The other inmate provided a statement that the two were engaged in an argument which escalated into a "pushing match." Montanez pled guilty to a modified charge .013, unauthorized physical contact. Montanez declined to make any further statements and counsel substitute requested leniency. The hearing officer adjudicated Montanez guilty of .013.

In reaching the sanction decision, the hearing officer considered Montanez's plea, the written statements of the inmates and the officers' reports. The hearing officer imposed ten days' detention with credit for time served, sixty days' loss of commutation time referred to administration, and ninety days' administrative segregation (suspended for sixty days). In his administrative appeal, appellant requested suspension of the sixty days' loss of commutation. The assistant superintendent upheld the decision of the hearing officer, finding there was substantial evidence and the sanction was proportionate to the offense. This appeal follows.

On appeal, appellant argues the following

POINT I

THE DISCIPLINARY HEARING OFFICER'S DECISION TO IMPOSE 60 DAYS LOSS OF COMMUTATION CREDITS WAS INCONSISTENT WITH THE SANCTIONS TYPICALLY IMPOSED ON SIMILARLY SITUATED INMATES AND RESULTED IN AN ARBITRARY AND CAPRICIOUS DECISION.

POINT II

THE COUNSEL SUBSTITUTE ASSIGNED TO APPELLANT'S HEARING MISINFORMED APPELLANT AND WAS INEFFECTIVE AS A RESULT, CONTRARY TO THE RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE [UNITED STATES] CONSTITUTION.

Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see alsoIn re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). Here, in determining guilt and the appropriate sentence, the hearing officer relied on reports from the officers who were present at the scene as well as the written statements of both inmates. Based on this evidence, the hearing officer concluded the punishment was commensurate with the offense to which appellant pled guilty. We agree.

Predicated upon our review of the record, we conclude there was substantial, credible evidence presented of appellant's guilt, Henry, supra, 81 N.J. at 580. We also conclude that, as a matter of procedural 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).

Finally, appellant argues that counsel substitute provided inaccurate advice and failed to "point out that there was no evidence in the record to support [a] finding of guilt." As this issue was not presented to the assistant superintendent in the course of the administrative appeal "when an opportunity for such a presentation was available[,]" we decline to consider the issue. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).