Opinion
DOCKET NO. A-2561-14T3
06-01-2016
MICHAEL SUAREZ, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Michael Suarez, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from the New Jersey Department of Corrections. Michael Suarez, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). PER CURIAM
Appellant Michael Suarez is an inmate at the New Jersey State Prison currently serving a life term following a conviction for murder and armed robbery. He appeals from a December 19, 2014 final administrative determination of the New Jersey Department of Corrections (DOC) finding him guilty of prohibited act *.803/*.215, attempting to commit or aiding another to commit possession with intent to distribute or sell prohibited substances, N.J.A.C. 10A:4-4.1(a). He was also found guilty of *.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, N.J.A.C. 10A:4-4.1(a).
After reviewing the briefs, the record, and applicable legal principles, we affirm.
I
The record reveals that on October 14, 2014, appellant was removed from the general prison population and placed into prehearing detention. On October 15, 2014, appellant was charged with *.704, perpetration of a fraud, N.J.A.C. 10A:4-4.1(a). On October 17, 2014, he was charged with *.215, possession with intent to distribute or sell prohibited substances such as, among other things, drugs.
The disciplinary hearing commenced on October 24, 2014, but because the hearing officer needed more time to sift through the evidence, the hearing was adjourned. Meanwhile, appellant continued to be held in prehearing detention.
The disciplinary hearing resumed on November 12, 2014. The hearing officer determined prohibited act *.754 was "a more appropriate charge" than *.704, and amended the charge of *.704 to and found appellant guilty of *.754. Before finding him guilty of this charge, neither appellant nor his counsel substitute wished to make a statement, and appellant did not request that any witnesses be produced.
The hearing officer relied upon the "confidential material" and various exhibits indentified in her summary of the proceedings to support the finding of guilt. She commented the material provided by the Special Investigation Division "clearly demonstrates" appellant received money from an inmate's family member that was "sent to further an illegal/improper purpose."
The material on which the hearing officer relied included a summary of the confidential material, which provided the following information. In February 2014, a confidential witness reported to the DOC that a controlled dangerous substance, Suboxone, was entering the prison through mail sent by a friend of another inmate, Frank Tobin. Specifically, strips of Suboxone were secreted along the glue seal line of envelopes containing greeting cards which the inmate's friend mailed to the prison. Payment for this drug was accomplished through wire transfers.
The confidential witness further reported appellant received Suboxone in this fashion. A "review of telephone calls" between inmates also revealed appellant agreed to sell controlled dangerous substances. A search of a civilian's home uncovered letters from Tobin to his friend, and one letter indicated fifty dollars was to be sent to Suarez. Thereafter, a search of Suarez's cell uncovered nine greeting cards and pieces of paper containing Tobin's friend's name, address, and telephone number.
As a consequence of violating *.754, appellant was sanctioned to, among other things, fifteen days of detention; however, as he had been in prehearing detention since October 17, 2014, he did receive credit for time served. He continued in prehearing detention until the final disciplinary hearing on December 5, 2014, when he was found guilty of *.803/*.215.
Before appellant was found guilty, he argued there was no evidence he "was to be sent anything or possessed anything." He did not request the production of any witnesses. The hearing officer did not find appellant guilty of *.215, as originally charged, but of *.803/*.215 because, although there was evidence he attempted to possess drugs with intent to distribute, there was no evidence he had been in actual possession of any drugs.
The hearing officer's findings were, in pertinent part, as follows:
Upon extensive review of the evidence provided by [the Special Investigation Division] . . . , it clearly demonstrates that this [inmate] conspired with other [inmates] and civilians(s) to possess CDS with the intent to distribute . . . . Inmate did not provide any evidence to discredit the information provided by [the Special Investigation Division], nor did he wish to call witnesses or have confrontation. Therefore, [I] will rely on the information provided by the Confidential Witness as well as the [Special Investigation Division] report verifying the content of reviewed phone calls between co-conspirators . . . , as well as the letters obtained . . . , to support the finding of guilt.
Among other things, appellant was sanctioned to fifteen days of detention, but he again received credit for time served. By December 5, 2014, appellant had spent a total of fifty-two days in detention.
Appellant filed an administrative appeal challenging the hearing officer's determinations on the charges, but her decision was affirmed by an assistant superintendent of the DOC.
II
Appellant raises the following arguments in support of his appeal:
POINT I: THE DISCIPLINARY HEARING OFFICER COMMITTED REVERSIBLE ERROR WHEN SHE FAILED TO TIMELY ADJUDICATE PENDING CHARGES AS SET FORTH IN N.J.A.C. 10A:4-5.3(A).
POINT II: THE DECISION OF THE DISCIPLINARY HEARING OFFICER WAS NOT BASED ON SUBSTANTIAL EVIDENCE AS REQUIRED.
POINT III: THE HEARING OFFICER'S FAILURE TO MAKE FINDINGS OF CREDIBILITY AND RELIABLITY OF THE CONFIDENTIAL INFORMATION VIOLATED SUAREZ'S RIGHT TO DUE PROCESS AND A FAIR HEARING.
Our role in reviewing the decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009); In re Taylor, 158 N.J. 644, 656 (1999). We will not disturb the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable. Circus Liquors, supra, 199 N.J. at 9. Further, decisions of administrative agencies carry with them a presumption of reasonableness. Newark v. Nat. Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). An appellate court may not reverse an agency's determination "[e]ven if [the] court may have reached a different result had it been the initial decision maker." Circus Liquors, supra, 199 N.J. at 10. Stated otherwise, a court "may not simply 'substitute its own judgment for the agency's.'" Ibid. (quoting In re Carter, 191 N.J. 474, 483 (2007)).
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).
Appellant contends the hearing officer violated N.J.A.C. 10A:4-5.3(a) and his rights to due process by failing to timely adjudicate the charges against him. He complains a motion to dismiss the charges on the ground they were not timely decided in accordance with the latter regulation was denied for the reason that N.J.A.C. 10A:4-9.9 does not mandate the dismissal of a charge if not disposed of in a timely fashion. Appellant also complains he was detained in excess of what is permitted under N.J.A.C. 10A:4-5.3(a)(1).
N.J.A.C. 10A:4-5.3(a)(1) provides:
(a) All disciplinary charges pending when the inmate begins serving time in Disciplinary Detention must be adjudicated prior to the completion of the inmate's Disciplinary Detention time. No inmate may receive more than 15 calendar days in Disciplinary Detention as a result of a single disciplinary charge . . .
1. If an inmate is found guilty of more than one disciplinary charge arising out of one incident, the inmate may receive up to 15 calendar days for each disciplinary charge provided that the total time to be served in the
Disciplinary Detention does not exceed 30 calendar days.
N.J.A.C. 10A:4-9.9 states:
(a) The failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge. However, the Disciplinary Hearing Officer or Adjustment Committee may, in its discretion, dismiss a disciplinary charge because of a violation of time limits. Such discretion shall be guided by the following factors:
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.
As appellant correctly points out, N.J.A.C. 10A:4-9.9 does not apply to and thus is unavailable to relax the time limitations in N.J.A.C. 10A:4-5.3(a). The reason is that N.J.A.C. 10A:4-9.9 applies only to "time limits prescribed by this subchapter." N.J.A.C. 10A:4-9.9 is in subchapter nine of chapter four of Title 10A, while N.J.A.C. 10A:4-5.3 is in subchapter five of chapter four of Title 10A. Nevertheless, we find no support for the premise that the failure to adhere to the time limits of N.J.A.C. 10A:4-5.3 constitutes a due process violation requiring the dismissal of a disciplinary charge.
As for his complaint he was detained beyond that which is permitted under N.J.A.C. 10A:4-5.3(a)(1), when appellant was first placed in detention on October 14, 2014, he was put into prehearing detention, see N.J.A.C. 10A:4-10.1, not disciplinary detention. N.J.A.C. 10A:4-10.1 provides that an inmate may be placed in prehearing detention when "it appears necessary to remove or isolate the inmate from the general population until an investigation into the inmate's alleged misconduct can be completed and a disciplinary hearing can be held." Ibid.
On November 12, 2014, appellant was found guilty of *.754 and sanctioned to fifteen days of disciplinary detention, for which he received credit for time served. He was not released but continued in prehearing detention until the final charges were adjudicated on December 5, 2014, when another fifteen days of disciplinary detention was imposed after he was found guilty of *.803/*.215, although again appellant received credit for time served. But only thirty of the fifty-two days appellant was detained was a disciplinary detention; for the remaining twenty-two days appellant was held was in prehearing detention. Thus, respondent did not violate N.J.A.C. 10A:4-5.3(a)(1), as appellant was not held in disciplinary detention in excess of the time allowed under this regulation.
We note N.J.A.C. 10A:4-10.1(f) provides that any time spent in prehearing detention shall be credited to any subsequent detention sentence imposed. Thus, if in the future appellant is sanctioned with any disciplinary detention, as of December 5, 2014, he has a credit of twenty-two days. --------
Appellant next contends there is insufficient evidence to sustain the hearing officer's findings. He also complains the hearing officer failed to provide a concise summary of the facts on which she relied to conclude the confidential informant was creditable or reliable. Our review of the record satisfies us that the hearing officer's determinations were supported by substantial evidence in the record. N.J.A.C. 10A:4-9.15(a); Jacobs v. Stephens, 139 N.J. 212, 222 (1995).
Although the decision of the hearing officer did not expressly state her reasons for finding appellant guilty, she did refer to the material on which she relied, which included a written summary of the confidential material; that summary is in the record. It is implicit in the hearing officer's decision she found the confidential materials and other evidence yielded as a result of the DOC's investigation to be reliable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION