Mendez v. N.J. Dep't of Corr.

Full title: OSCAR MENDEZ a/k/a OSCAR CESAR MENDEZ, Appellant, v. NEW JERSEY DEPARTMENT…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 12, 2015

DOCKET NO. A-6145-12T3 (App. Div. Mar. 12, 2015)

Opinion

DOCKET NO. A-6145-12T3

03-12-2015

OSCAR MENDEZ a/k/a OSCAR CESAR MENDEZ, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

Oscar Mendez, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Whipple. On appeal from New Jersey Department of Corrections. Oscar Mendez, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). PER CURIAM

Oscar Mendez, an inmate at New Jersey State Prison (the "prison"), appeals from a final agency decision finding him guilty of prohibited acts *.803 (attempted possession of narcotics), *.215 (possession with intent to distribute narcotics), and *.009 (possession of electronic communication device), in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Mendez is serving a life sentence with a thirty-five year mandatory minimum term for murder, weapons offenses, and contempt. In May 2013, after an extensive, multi-agency investigation into narcotics trafficking and contraband cellular communications devices at the prison, investigators found that Mendez possessed and distributed narcotics at various times in 2010 and 2011. Investigators also determined that Mendez possessed and utilized a cell phone during the same period.

As a result of these investigatory findings, Mendez was served with disciplinary charges under *.803, *.215, and *.009 on May 15, 2013. The disciplinary hearing began on May 17, 2013, and was postponed numerous times so the disciplinary hearing officer (DHO) could obtain information from the investigation and Mendez could have his requested confrontation scheduled and his polygraph request considered. Mendez requested and received the assistance of counsel substitute. Mendez and his counsel substitute declined the opportunities to make an oral statement or call witnesses, and instead relied on a written statement which was placed on the record. Mendez also had an opportunity to cross-examine the investigator.

In June 2013, after reviewing evidence which included the interview of a confidential witness, confidential reports, and the testimony of an investigator, the DHO adjudicated Mendez guilty of the charges. With regard to the charges under *.803 and *.215, the DHO wrote that the decision relied on a disciplinary report that stated the investigation revealed that Mendez conspired with civilians and other inmates to possess narcotics. Additionally, the DHO wrote that the investigator provided testimony consistent with the report, and that a confidential witness corroborated the evidence. Consequently, the DHO sanctioned Mendez with 365 days of administrative segregation, lost commutation time, and urine monitoring, as well as the permanent loss of contact visits.

With respect to the charge under *.009, the DHO again found the investigator's testimony consistent with the disciplinary report, and wrote that the investigation revealed that Mendez possessed a cell phone. The DHO said that the confidential witness also corroborated this finding. Accordingly, Mendez was sanctioned with: 15 days of detention with credit for time served; 365 days of administrative segregation, lost commutation time, and lost phone privileges; and a permanent loss of contact visits. Mendez filed an administrative appeal, but an assistant superintendent at the prison upheld the adjudication of guilt.

On appeal, Mendez contends that he was denied his right to a fair hearing and due process. He argues that the DHO failed to provide a sufficient description of the confidential information relied upon, and claims that he did not receive timely notice of the charges against him.

Our role in administrative appeals is limited. Administrative decisions are not reversed unless they are "arbitrary, capricious or unreasonable or . . . not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

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." Additionally, in a case

in which the [DHO's] . . . decision of guilt is based on evidence which includes confidential information, adjudication shall contain . . . [a] concise summary of the facts on which the [DHO] . . . concluded that the informant was creditable or his or her information reliable; and . . . [t]he informant's statement (either in writing or as reported) in language that is factual rather than a conclusion, and based on the informant's personal knowledge of the matters contained in such statement.



[N.J.A.C. 10A:4-9.15(b)1.]

These provisions are consistent with the "the minimum requirements of due process." Avant v. Clifford, 67 N.J. 496, 523 (1975) (citation and internal quotation marks omitted) (holding due process requires the disclosure of evidence and a factfinder's written statement as to evidence relied on and reasons for acting).

Here, Mendez argues that the DHO failed to include in the summary the confidential informant's statements in accordance with Avant, supra, and N.J.A.C. 10A:4-9.15(b)1. We conclude that this argument is unpersuasive. Mendez was given the opportunity to review the adjudication report and all of the evidence considered by the DHO, including a concise factual summary. He also had an opportunity to cross-examine adverse witnesses. Moreover, the DHO clearly stated that the findings of guilt were based upon the disciplinary report and that the investigator testified consistent with the report. The DHO characterized the confidential information as corroborative. Therefore, the DHO's findings of guilt are based on substantial evidence.

Mendez also maintains that he was not provided with adequate notice of the charges against him. He asserts that the charges should be dismissed because they lack specific dates for alleged misconduct and were not timely served.

N.J.A.C. 10A:4-9.2 requires service of disciplinary reports within forty-eight hours of violations, unless there are exceptional circumstances which justify later notice. Even when there are no exceptional circumstances, "[t]he failure to adhere to . . . [the] time limits prescribed . . . shall not mandate the dismissal of a disciplinary charge[,]" and failure to adhere to time limits may be excused after considering "1. The length of the delay; 2. The reason for the delay; 3. Prejudices to the inmate in preparing his/her defense; and 4. The seriousness of the alleged infraction." N.J.A.C. 10A:4-9.9(a).

With regard to timely service of charges, we conclude that exceptional circumstances were present due to the ongoing and extensive multi-agency investigation into narcotics trafficking and cellular communications at the prison. Additionally, Mendez argues that the charges should be dismissed because they lack specific dates. This contention is without sufficient merit to warrant discussion. 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