JONATHAN ZARATE v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JONATHAN ZARATE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________

January 30, 2017

Submitted January 9, 2017 Decided

Before Judges Nugent and Haas.

On appeal from the New Jersey Department of Corrections.

Jonathan Zarate, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Jonathan Zarate, an inmate currently in the custody of the Department of Corrections (DOC), appeals from the DOC's May 27, 2015 decision, adjudicating him guilty of institutional infractions *.002, assaulting any person, and *011,1 possession or exhibition of anything related to a Security Threat Group ("STG").2 N.J.A.C. 10A:4-4.1(a). We affirm.

Appellant is currently serving an aggregate term of life imprisonment plus twenty-four years following his convictions of first-degree murder, second-degree desecrating human remains, second-degree use of a juvenile to commit a crime, and other offenses. The record reveals that, on March 18, 2015, appellant punched a corrections officer in the chest with a closed fist after the officer asked for his ID card following a routine pat search. The next day, a sergeant served appellant with the *.002 assault charge, conducted an investigation, and referred the charge to a hearing officer for further action.

On March 19, 2015, a corrections officer found STG materials in appellant's cell. The next day, a sergeant served appellant with the *.011 possession of STG materials charge and, following an investigation, referred the charge to a hearing officer.

Pending the hearings, the DOC placed appellant in Prehearing Detention. Pursuant to N.J.A.C. 10A:4-9.8(c), "[i]nmates confined in Prehearing Detention shall receive a hearing within three calendar days of their placement[,] . . . unless there are exceptional circumstances, unavoidable delays[,] or reasonable postponements." In accordance with this regulation, the hearing on the *.002 charge began on March 20, 2015. Appellant pled not guilty to the charge and was granted the assistance of counsel substitute. Appellant requested a video of the incident, a polygraph examination, and the right to confront witnesses. Accordingly, the hearing was postponed several times to accommodate his requests.

After the DOC made arrangements to address appellant's requests, he changed his not guilty plea to a "no plea" and stated he no longer wished to take a polygraph test, have the video reviewed, or confront any witnesses. Thus, the hearing officer found appellant guilty of the *.002 assault charge and sanctioned him by imposing 15 days' detention, with credit for time served, 180 days' administrative segregation, and 180 days' loss of commutation time.

The DOC's handling of the *.011 possession of STG materials charge followed a similar path. The hearing began on March 23, 2015, and appellant again pled not guilty and requested a polygraph, an examination of a video, and confrontation. After the hearing was postponed to address these requests, appellant withdrew them and amended his not guilty plea to a no plea. The hearing officer reviewed the documents found in appellant's cell and concluded they were materials relating to a STG known as the "Netas." The hearing officer found appellant guilty of the *.011 charge, but imposed no additional sanctions. On May 27, 2015, the Assistant Superintendent upheld the hearing officer's findings and sanctions. This appeal followed.

On appeal, appellant argues there was insufficient evidence in the record to support the hearing officer's finding of guilt, and asserts for the first time that his due process rights were violated by the DOC during its handling of the charges. We disagree.

The scope of our review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). However, when reviewing a determination of the DOC in a matter involving prisoner discipline, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the DOC followed regulations adopted to afford inmates procedural due process. See McDonald v. Pinchak, 139 N.J. 188, 194-96 (1995).

Having considered the record in light of the foregoing principles, we conclude that sufficient credible evidence in the record supports the DOC's determination that appellant was guilty of assaulting the officer and possessing STG materials. With regard to the assault charge, appellant did not contest the officer's account of the incident. He entered a no plea, and his counsel substitute merely asked for leniency. Turning to the *.011 charge, the report of a senior investigator confirmed that the written documents found in appellant's cell contained a number of terms that were used by the Netas in recruiting new members. Thus, we discern no basis for disturbing the hearing officer's conclusion that appellant was guilty of both charges.

Appellant's due process claims also lack merit. Appellant complains that his hearing was postponed while he was housed in Prehearing Detention. However, appellant caused the postponements when he requested a polygraph examination, a video of the incident, and confrontation. Thus, the hearing was properly rescheduled to protect appellant's due process rights. See N.J.A.C. 10A:4-9.8(c) (permitting "reasonable postponements").

Appellant also asserts that the hearing officer who found him guilty of the charges was not the same hearing officer who had presided at the beginning of the proceedings, and that the hearing officer did not review all of the materials in the record before rendering her decisions. We disagree.

It is well established that "when the evidentiary phase of a hearing has begun but is adjourned for any reason, and the original hearing officer is unavailable on the date the hearing resumes, the evidentiary phase of the hearing must begin anew before the replacement hearing officer." Ratti v. Dep't of Corr., 391 N.J. Super. 45, 48 (App. Div. 2007). Contrary to appellant's contentions on appeal, the replacement hearing officer's decisions specifically stated that she reviewed all of the evidence presented as "per Ratti. Therefore, we reject appellant's argument on this point.

As for the balance of any of appellant's arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

1 Infractions "preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a).

2 A "STG" is a group of inmates that poses "a threat to the safety of the staff, other inmates, the community or causes damages to or destruction of property, or interrupts the safe, secure and orderly operation of the correctional facility(ies)." N.J.A.C. 10A:1-2.2.