Opinion
DOCKET NO. A-1804-12T4
01-27-2016
MARIO FLORES, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Mario Flores, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Rothstadt. On appeal from the New Jersey Department of Corrections. Mario Flores, 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). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Mario Flores — a prison inmate serving a life sentence — appeals from a final decision of the Department of Corrections (DOC), which disciplined him for committing prohibited acts *.704 ("perpetrating frauds, deceptions, confidence games, riots or escape plots"), and .754 ("giving money or anything of value to, or accepting money or anything of value from, a member of another inmate's family or another inmate's friend with an intent to circumvent any correctional facility or Departmental rule, regulation or policy or with an intent to further an illegal or improper purpose"). See N.J.A.C. 10A:4-4.1(a). We affirm.
"Prohibited acts 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) (citation omitted).
The record reveals this disciplinary matter arose from the Special Investigation Division's (SID) investigation into a large conspiracy involving money laundering and drug trafficking by inmates passing funds to other inmates or their families or friends. As part of its investigation, SID learned that Flores received a sixty-dollar money order from another inmate's friend, and deposited it into his inmate trust account. Believing this to be part of the alleged conspiracy, the DOC issued disciplinary charges against Flores.
Flores was served with notice of the charges on November 5, 2012. He did not enter a plea to the charges. He was assigned counsel-substitute. Flores declined to make a statement, request the gathering of statements from witnesses, or confront or cross-examine adverse witnesses. At the hearing, his counsel-substitute offered no arguments on Flores's behalf, relying instead upon Flores's plea.
According to the DOC, prison officials originally charged Flores with committing prohibited acts *.754 and *.306 ("conduct which disrupts or interferes with the security or orderly running of the correctional facility"), see N.J.A.C. 10A:4-4.1, but the latter was amended to the .704 charge currently at issue. Flores was also charged with a variety of other offenses, including those related to the possession and distribution of prohibited substances, but he did not pursue an administrative appeal of those additional charges. --------
The hearing officer found Flores guilty of violating both *.704 and .754. With respect to the *.704 charge, the hearing officer sanctioned Flores with detention, 365 days of administrative segregation, a 365-day loss of commutation time, and referral to the Classification Committee for a status review. On the .754 charge, Flores was sanctioned with detention, ninety days of administrative segregation, a sixty-day loss of commutation time, confiscation of the sixty dollars deposited into his account, and referral to the Classification Committee.
Flores filed an administrative appeal with the DOC from the hearing officer's decision, claiming it involved a "violation of Standards" and "misinterpretation of the facts." Specifically, he argued his charges were "based on an investigation and sanctions already imposed, and cannot be adjudicated to prejudicially substantiate a charge by [SID]." He contended the process "violate[d] due process, equal protection, the fair hearing process, and double jeopardy" because the investigation had been closed and should not have been reopened, and the hearing officer demonstrated a lack of impartially by failing to dismiss the charges.
After considering his appeal, the prison's assistant superintendent upheld the hearing officer's decision. She addressed Flores's arguments and concluded he received the procedural safeguards to which he was entitled, the facts had not been misrepresented, and there was no "double jeopardy" because "[e]ach charge pertain[ed] to a different charge" and "the charges were written after the investigation was completed."
Flores appeals from the DOC's final disposition, arguing:
THE DECISION OF THE DEPARTMENT OF CORRECTIONS FINDING APPELLANT GUILTY OF VIOLATING PROHIBIT[ED] ACT *.704 AND 754 WAS OBTAINED IN VIOLATION OF THE FAIR HEARING CONCEPT MANDATED BY THE NEW JERSEY ADMINISTRATIVE CODE.
In his supporting brief, Flores contends the proof before the hearing officer did not constitute substantial evidence that he constructively possessed controlled substances. In so arguing, he relies upon an unpublished opinion from this court and our Supreme Court's decision in State v. Morrison, 188 N.J. 2, 14 (2006).
We conclude from our review of the record that Flores never raised his current argument at his original disciplinary hearing or in his administrative appeal to the DOC. We do not review questions that were not raised before the administrative agency "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., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). We do not find any such basis to disturb the DOC's decision in this case.
Even if he had raised his current argument in his administrative appeal, we conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). There was substantial credible evidence in the record as a whole to support the DOC's findings as to his guilt, see R. 2:11-3(e)(1)(D), and Flores's due process rights were not violated, as he was afforded the process due an inmate in disciplinary proceedings. See McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Moreover, the DOC's determination was unrelated to any charge relating to possession of controlled substances. Accordingly, the DOC's decision was not arbitrary, capricious, or unreasonable. See Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION