Opinion
DOCKET NO. A-4862-12T1
04-02-2015
MICHAEL L. ORTIZ, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Michael L. Ortiz, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Manahan. On appeal from the New Jersey Department of Corrections. Michael L. Ortiz, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
This is an appeal from a prison disciplinary proceeding. Appellant, Michael Ortiz, is an inmate currently incarcerated at South Woods State Prison. At the time of the incident giving rise to the charges and disciplinary sanction, Ortiz was incarcerated at Bayside State Prison. Ortiz appeals the decision of the Department of Corrections imposing sanctions after a finding of guilt for committing prohibited act .210, possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels. N.J.A.C. 10A:4-4.1(a). Ortiz was sanctioned to ten days of detention, ninety days of Administrative Segregation, sixty days loss of commutation time, a referral to the Mental Health Department and confiscation of the pills. We affirm.
On April 29, 2013, during a routine search, four unidentifiable pills were found in a food seasoning packet inside of Ortiz's locked foot locker. He was charged with committing prohibited act .203. At the commencement of the hearing, the hearing officer amended the .203 charge to a .210 charge. Ortiz pled "not guilty" to the modified charge.
Pursuant to N.J.A.C. 10A:4-9.12, Ortiz was afforded the assistance of a counsel substitute. Ortiz received notice of the charge prior to the hearing. The hearing was conducted by an impartial hearing officer. Ortiz was permitted to defend the charges after his plea of not guilty. Ortiz and his counsel substitute were provided with the adjudication reports and evidence considered by the hearing officer and they accepted that the information presented was accurate. Ortiz was afforded the opportunity to obtain statements from witnesses, but declined. Ortiz was offered the opportunity to confront or cross-examine adverse witnesses, but declined.
On appeal, Ortiz argues he was denied the opportunity to obtain and present evidence of fabrication of a disciplinary infraction. Ortiz also argues when a disciplinary infraction is based solely on the credibility of a correction officer, inmates must be allowed to present defenses other than mere deniability. Ortiz also contends his positive disciplinary record was not given proper consideration.
The Department has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, it has been noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).
Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Prisoners are, however, entitled to certain limited protections. Id. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff of the prison, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, the assistance of a counsel-substitute, and a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995); Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995). From our review of the record, Ortiz was afforded these rights.
We have a limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009). The relevant standard of review is "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole[.]" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted). N.J.A.C. 10A:4-9.15(a) provides that "a finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act."
We are satisfied the disciplinary hearing complied with all procedural due process requirements. Avant, supra, 67 N.J. at 521-22. We are also satisfied that the finding of guilt was supported by substantial credible evidence. Taylor, supra, 158 N.J. at 656.
Ortiz' remaining argument relative to consideration of his positive disciplinary record is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION