Opinion
DOCKET NO. A-5610-13T1
08-14-2015
ANDREW ORECKINTO, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Andrew Oreckinto, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Hoffman. On appeal from the New Jersey Department of Corrections. Andrew Oreckinto, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief). PER CURIAM
Appellant Andrew Oreckinto, a prison inmate, appeals from the July 18, 2014 final agency decision of the New Jersey Department of Corrections (DOC) finding, contrary to N.J.A.C. 10A:4-4.1(a), Oreckinto committed prohibited acts *.002, assaulting any person, and *.005, threatening another with bodily harm. We affirm.
I.
We discern the following facts from the record. On July 13, 2014, at Bayside State Prison, Senior Corrections Officer (SCO) Felton Goodwin observed Oreckinto kissing a visitor. SCO Goodwin instructed Oreckinto that kissing visitors is prohibited. After leaving the visiting area and entering the strip room, Oreckinto told SCO Goodwin, "You['re] not going to kiss your family again." Oreckinto then struck SCO Goodwin in the chest with his shoulder. Another corrections officer, SCO David Woolson, was present and observed the assault. SCO Goodwin called for backup. Sergeant Joseph Mellace responded and observed SCO Goodwin and SCO Woolson struggling to subdue Oreckinto. During the struggle, Oreckinto sustained injuries to his face, head, and ribs.
Oreckinto was charged with committing prohibited acts *.002, assaulting any person, *.005, threatening another with bodily harm, and *306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. On July 14, 2014, Sergeant J. Henson served Oreckinto with the charges and conducted an investigation. Sergeant Henson determined that the charges had merit and referred them to a disciplinary hearing officer.
At Oreckinto's request, the hearing was postponed to investigate whether there was a video of the incident. No video was discovered. The hearing was conducted July 18, 2014. Oreckinto requested and was afforded the assistance of counsel substitute. He pled not guilty. The adjudication report, signed by the counsel substitute, shows that Oreckinto was present at the hearing and made a statement that he was sexually assaulted and unconscious. Oreckinto declined the opportunity to call witnesses or to cross-examine adverse witnesses.
The hearing officer found Oreckinto guilty of all charges. The *.306 charge combined with the *.002 charge, and the hearing officer sentenced Oreckinto to 10 days of detention, 180 days of Administrative Segregation, and 180 days of loss of commutation time. On the *.005 charge, the hearing officer sentenced Oreckinto to 10 days of detention, 120 days of Administrative Segregation, and 120 days of loss of commutation time.
Oreckinto did not appeal the finding as to the *.306 charge, and thus that finding is not before us. --------
On July 18, 2014, Oreckinto filed an administrative appeal of the decision of the hearing officer as to the *.002 and *.005 charges. On July 21, 2014, Assistant Superintendent Solanik considered the appeal and upheld the hearing officer's guilty finding and sanctions. On July 22, 2014, Oreckinto filed this appeal.
On appeal, Oreckinto argues that the record lacks substantial evidence to support the guilty findings as to the *.002 and *.005 charges. He also argues that he was denied the opportunity to confront and cross-examine the witnesses against him.
II.
Our role in reviewing the decision of an administrative agency is limited. Decisions of administrative agencies carry with a strong 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 reverse only where it is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); accord In re Musick, 143 N.J. 206, 216 (1996).
An adjudication of guilt of an infraction must be supported by substantial evidence. N.J.A.C. 10A:4-9.15(a). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961) (citation and internal quotations omitted). The substantial evidence standard permits an agency to apply its expertise where the evidence supports more than one conclusion. "Where there is substantial evidence in the record to support more than one regulatory conclusion, it is the agency's choice which governs." In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (citation and internal quotations omitted), certif. denied, 127 N.J. 323 (1990). We do not substitute our judgment of the fact-finding of an administrative agency if it is supported by the record. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001).
Prisoners are entitled to certain limited protections prior to being subjected to disciplinary sanctions. However, prison disciplinary proceedings do not require the same due process protections as in criminal courts. Avant v. Clifford, 67 N.J. 496, 523-24 (1975). Prisoners facing disciplinary charges have a waivable right to confront and cross-examine witnesses. Id. at 529; Jones v. Dep't of Corrs., 359 N.J. Super. 70, 75 (App. Div. 2003).
Oreckinto argues that he was the victim of an unprovoked assault and cover up. He claims there were three cameras in the area of the incident, and argues the absence of video is suspect. In addition, Oreckinto claims his due process rights were violated. He asserts that he was not present at the hearing, and was denied his right to cross- examine witnesses.
Three officers provided written statements that support the finding that Oreckinto threatened SCO Goodwin, initiated the assault, and resisted efforts to subdue him. The hearing officer's decision not to draw an adverse inference from the lack of video was not an abuse of discretion. Finally, the adjudication report indicates that Oreckinto was present at the hearing and waived his right to call and cross-examine witnesses.
The record contains substantial evidence that supports the guilty findings of prohibited acts *.002 and *.005. Further, we are satisfied the DOC afforded Oreckinto all due process to which he was entitled. Accordingly, we discern no basis to disturb the final agency decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION