Opinion
DOCKET NO. A-2227-13T1
03-23-2015
DANIEL DELGADO, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Daniel Delgado, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Publisi, Assistant Attorney General, of counsel; Alex J. Zowin, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from the New Jersey Department of Corrections. Daniel Delgado, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Publisi, Assistant Attorney General, of counsel; Alex J. Zowin, Deputy Attorney General, on the brief). PER CURIAM
Appellant Daniel Delgado, incarcerated at New Jersey State Prison in Trenton, appeals from the final decision of respondent New Jersey Department of Corrections (DOC), which upheld a hearing officer's finding that he had committed prohibited act *.010, participating in an activity related to a security threat group, in violation of N.J.A.C. 10A:4-4.1. We affirm.
An investigation conducted by the Special Investigations Division of the DOC uncovered a certification executed by Delgado declaring that he was a member of the Almighty Latin King and Queen Nation, and that he undertook "full responsibility and guarantee[s] . . . the safety of Jose Vega . . . [who] is indeed in good standing within [this organization]." Vega was another inmate at the prison.
On November 12, 2013, Delgado was charged with prohibited act *.010 and placed in prehearing detention. He was served with notice of the charge on November 13, 2013, and the hearing commenced the following day. Delgado pled not guilty and requested and received counsel substitute. The hearing was postponed but resumed and was completed on November 21, 2013. Delgado testified in his own defense and submitted witness statements; he declined to cross examine any adverse witnesses.
Given the admissions in his certification, the hearing officer found Delgado was providing protection to another member of the Almighty Latin King and Queen Nation and, thus, was participating in "gang activity." Concluding he committed prohibited act *.010 by participating in a security threat group activity in violation of N.J.A.C. 10A:4-4.1(a), the hearing officer sanctioned Delgado to fifteen days of detention, 365 days of administrative segregation, and the loss of recreation privileges for thirty days.
On November 28, 2013, Delgado filed an administrative appeal. He not only challenged the hearing officer's decision but also raised, for the first time, that he should not have been placed in prehearing detention. As for the latter argument, he claimed he did not pose a threat to the prison staff or to other inmates, and there was no evidence he would have interfered with the orderly operation of the prison. He also contended he was detained longer than permitted under N.J.A.C. 10A:5-7.1.
On December 24, 2013, Assistant Superintendent George O. Robinson, Jr., upheld the hearing officer's decision. He did not address Delgado's contention that he had been improperly detained before the hearing.
Delgado raises the following arguments for our consideration:
POINT I: THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED DUE TO ITS FAILURE TO ADHERE TO N.J.A.C. 10A:5 7.1(A)(C)(D)(E)(F)(G) PROCEDURES FOR PLACEMENT IN TEMPORARY CLOSE CUSTODY AND DENYING APPELLANT'S DUE PROCESS REQUIRED BY THE NEW JERSEY ADMINISTRATIVE CODE.
POINT II: THE DECISION OF THE DEPARTMENT OF CORRECTIONS FINDING APPELLANT GUILTY OF
VIOLATING PROHIBITED ACT *.010 WAS OBTAINED IN VIOLATION OF DUE PROCESS MANDATED BY THE NEW JERSEY ADMINISTRATIVE CODE.
POINT III: THE DISCIPLINARY HEARING OFFICER'S GUILTY FINDING WERE NOT BASED ON SUBSTANTIAL EVIDENCE AND DENIED THE APPELLANT OF HIS DUE PROCESS RIGHTS.
As for Delgado's argument that the final decision must be reversed because he was detained before the hearing, "[it] is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). This rule also applies to administrative agency decisions. In re Stream Encroachment Permit, 402 N.J. Super. 587, 602 (App. Div. 2008). Because Delgado's argument fails to fulfill either criteria, we decline to address this point.
As for the remaining arguments, our review of actions of administrative agencies is "severely limited." George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). A court "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.
When reviewing a final determination of the DOC in a prisoner disciplinary matter, we consider whether there is substantial evidence that the inmate has committed the prohibited act and whether, in making its decision, the DOC followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995). "[We] may not substitute [our] own factfinding for that of the agency," but "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006).
Applying these standards, we are satisfied there is substantial credible evidence in the record to support the hearing officer's decision, which the Assistant Superintendent, in turn, upheld. We discern no basis necessitating our intervention.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION