JOE GUTIERREZ-MORILLO 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NOT FOR PUBLICATION WITHOUT THE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

JOE GUTIERREZ-MORILLO,1

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________

April 15, 2016

Submitted March 15, 2016 Decided

Before Judges Yannotti and Vernoia.

On appeal from the New Jersey Department of Corrections.

Joe Gutierrez-Morillo, appellant pro se.

Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Matthew Lynch, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, an inmate in the State's correctional system, appeals from a final determination of the NJDOC, finding him guilty of committing prohibited act *.203, possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Appellant is serving a seven-year sentence, with a two-year, four-month period of parole ineligibility, as a result of his conviction for the manufacture and distribution of a controlled dangerous substance. Appellant had been assigned to the Kintock Group Residential Community Release Program (Kintock). While at Kintock, appellant was assigned to work detail at Lucca Cold Storage (LCS).

On November 12, 2014, at around 3:30 p.m., the supervisor at LCS opened a locker that had recently been occupied by appellant and another inmate. Appellant and the other inmate had been returned to correctional facilities two days earlier, on unrelated charges. The supervisor inspected the locker and found clear plastic bags, a digital scale, metal spoons, night-time and day-time medications, ampicillin, and a cold-relief packet. The items were seized.

On November 13, 2014, appellant was informed that he had been charged with committing prohibited act *.203. A corrections officer investigated the matter, determined that the charge had merit, and referred the matter to a hearing officer for further action. At the hearing, which took place on November 14, 2014, appellant did not enter a plea. He requested the assistance of counsel substitute, which was granted. Appellant was offered the opportunity to make a statement. He declined.

Counsel substitute told the hearing officer that appellant was not using the locker at LCS, did not know of its contents, and had no prior disciplinary charges. During the investigation, appellant was offered the opportunity to obtain witnesses. He declined to name any witnesses. He presented no witnesses at the hearing. Appellant also was offered the opportunity to confront or cross-examine any adverse witness, but he declined the offer.

The hearing officer found appellant guilty of the charge, noting that the locker contained prohibited substances and drug paraphernalia. On the adjudication form, the hearing officer wrote that "[inmates] are responsible for the contents of their lockers." The hearing officer indicated that it was reasonable to assume an inmate would be aware of the contents of his locker.

The hearing officer imposed the following sanctions: 15 days of detention, 120 days of administrative segregation, the loss of 120 days of commutation time, 365 days of urine monitoring, and permanent loss of contact visits. The hearing officer indicated that the sanctions were imposed to deter inmates from possessing drug paraphernalia and to promote a safe and secure correctional facility.

Appellant filed an administrative appeal. He sought clemency, and asked that the sanctions be dismissed, lessened, or suspended. On November 17, 2014, the NJDOC issued its final decision on the appeal, finding that the charge had been adjudicated in accordance with applicable procedural safeguards, and the sanctions were appropriate to the charge. The NJDOC rejected appellant's request for leniency. This appeal followed.

On appeal, appellant argues that there is insufficient evidence to support the NJDOC's finding of guilt. He contends that he never utilized any locker at Kintock. He notes that he left Kintock two days before the contraband was discovered and argues that there was no documentary proof that he was assigned to the locker at issue. Appellant asserts that the NJDOC failed to show that other persons did not have access to the locker. He asserts that the record does not show whether the unit was locked before the contraband was discovered; and, if the unit was locked, the person who placed the lock on the unit.

Initially, we note that the scope of our review in appeals from final decisions of administrative agencies is "severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

Furthermore, when reviewing a final decision of the NJDOC imposing disciplinary sanctions upon an inmate, our review is limited to determining whether there is substantial evidence to support the agency's finding and whether, in rendering its decision, the NJDOC afforded the inmate the process due. See McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stephens, 139 N.J. 212 (1995).

We are satisfied from our review of the record that there is sufficient credible evidence supporting the NJDOC's determination that appellant committed prohibited act *.203. The NJDOC's staff reports indicate that appellant and another inmate had used the locker, which contained the aforementioned prohibited items. Although appellant and the other inmate who used the locker had been returned to correctional facilities two days before the prohibited items were discovered, there is no evidence that any other person had access to the locker. The record supports the hearing officer's finding that, under the circumstances, appellant was responsible for the contents of the locker.

Appellant argues that his counsel substitute was ineffective. Because appellant was charged with an asterisk offense, he was afforded the assistance of counsel substitute. N.J.A.C. 10A:4-9.12(a). Appellant asserts that his counsel substitute was ill-equipped to handle the matter. He contends counsel substitute improperly waived his right to call witnesses and present evidence at the hearing.

We find no merit in these arguments. As noted, when the charge was investigated, appellant did not identify any witnesses who might have provided evidence relevant to the charge. His counsel substitute signed the adjudication form, indicating that it accurately recorded what had occurred at the hearing. There is no indication that appellant disagreed with the manner in which counsel substitute handled the proceeding. The adjudication report does not indicate that defendant objected to the waiver of his right to call witnesses or present evidence at the hearing.

We have considered appellant's other arguments and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We note that while appellant refers to himself as Joe Morillo-Gutierrez, the records of the New Jersey Department of Corrections (NJDOC) indicate that his name is Joe Gutierrez-Morillo. We have changed the caption to be consistent with the NJDOC's records. We also note that appellant has several aliases, including Joe Gutierrez and Joe Morillo.