Opinion
DOCKET NO. A-2586-12T1
07-10-2014
MOISES VELEZ, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Moises Velez, 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NOT FOR PUBLICATION WITHOUT THE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 Parrillo and Alvarez.
On appeal from the New Jersey Department of Corrections.
Moises Velez, 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
Moises Velez appeals the December 31, 2012 final decision of the New Jersey Department of Corrections (DOC) that he committed prohibited act *.253, engaging in, or encouraging, a group demonstration, N.J.A.C. 10A:4-4.1(a). The sanctions imposed included fifteen days detention, 365 days administrative segregation, and 365 days loss of commutation time. We affirm.
The relevant facts can be briefly summarized. At approximately 7:00 a.m. on December 10, 2012, all of the inmates of housing unit 3EE, which then included Velez, were in a gym area awaiting delivery of their breakfast. Officer K. Conner was standing in a glass booth near a group of several men, including Velez. He overheard him and others encouraging the inmates to refuse their food trays, medications, and work assignments. All the inmates from the unit refused the meal.
After an investigation, charges were served on Velez the following day. He was granted counsel substitute. See N.J.A.C. 10A:4-9.12. Velez requested a polygraph examination, which request was administratively considered and denied. The hearing was postponed in order to allow Velez and his counsel substitute to obtain witness statements from inmates present at the scene, Wispe and Underwood, and to confront and cross-examine Officer Conner. During the confrontation hearing on December 18, 2012, pursuant to DOC protocol, Velez submitted written questions to Hearing Officer DiBenedetto (HO), who then propounded them to Officer Conner. Additional questions were also submitted. Velez's request to call as witnesses Wispe, Underwood, and a third inmate, Bettencourt, was denied, because the HO was concerned regarding possible retribution. N.J.A.C. 10A:4-9.14(b). The HO also viewed the video taken at the time of the incident, although she found it to be unhelpful as it "panned back [and] forth [with] little focus." The HO concluded the matter on December 21 after receiving Velez's written defense, found him guilty of the prohibited act, and imposed the sanctions that we have described.
On December 24, 2012, Velez administratively appealed the decision. On December 31, 2012, Assistant Superintendent Suzanne Lawrence upheld the guilty finding and the imposition of sanctions. This appeal followed.
Velez now raises the following issues for our consideration:
POINT I
THE ADJUDICATION OF GUILT MUST BE REVERSED, AS THERE IS NOT SUBSTANTIAL EVIDENCE THAT VELEZ COMMITTED THE PROHIBITED ACT.
POINT II
THE DISCIPLINARY HEARING OFFICER'S REFUSAL TO ALLOW VELEZ TO CALL AND QUESTION IN-PERSON, WITNESSES FOR HIS DEFENSE, VIOLATED HIS RIGHT TO DUE PROCESS AND A FAIR HEARING.
Our role in reviewing the decision of an administrative agency is limited. In re Herrman, 192 N.J. 19, 27 (2007); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We do not reverse an administrative agency determination unless we find that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that the decision violated legislative policies. Herrman, supra, 192 N.J. at 27-28; In re Musick, Dep't of Corr., 143 N.J. 206, 216 (1996).
It is equally well-established that disciplinary proceedings do not entitle a prisoner to the full spectrum of rights due to a defendant in a criminal proceeding. Avant v. Clifford, 67 N.J. 496, 522 (1975). The limited rights to which prisoners are entitled are intended to "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald v. Pinchak, 139 N.J. 188, 202 (1995). In this case, the procedural requirements as explained in Avant were met, while the institutional security concern was substantial, given the nature of the event.
When reviewing questions regarding an agency's interpretation of its legislative mandate, we do so deferentially. Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 485 (2008). It is self-evident that security is an issue best deferred to the agency charged with keeping the prisons safe. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305-06 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994).
Velez contends the HO erred in concluding that Officer Conner's testimony was credible and that his was not. He also objects to her refusal to permit him to call witnesses to testify at the hearing as opposed to presenting their written statements.
We do not weigh the testimony anew. Instead, we ask whether there was substantial evidence to support the adjudication of guilt. See McDonald, supra, 139 N.J. at 201; N.J.A.C. 10A:4-9.15(a). And in that regard, Officer Conner's testimony was such evidence, "evidence as a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (internal quotation marks omitted).
Simply stated, Officer Conner said that he overheard Velez and others urging the inmates to refuse their breakfast trays, medications, and work assignments. Other than Velez's own denials, nothing in the record raises doubt about the reliability of Officer Conner's observation and his credibility.
Insofar as Velez's request that he be permitted to present witnesses, as opposed to merely proffering written statements, inmates have a limited right to call witnesses. Avant, supra, 67 N.J. at 529-30. The HO balanced her concerns about security against Velez's need for live testimony, and her decision was based on DOC regulations. Those regulations vest sole discretion to permit witnesses to be questioned during disciplinary hearings in person in hearing officers, and enumerate the situations in which such requests may be denied. N.J.A.C. 10A:4-9.13(a) and 10A:4-9.14(b). We see no abuse of discretion in the HO's decision in this case because of her expressed concern regarding retribution and retaliation. See ibid.
Therefore, we conclude there was nothing arbitrary, capricious, or unsupported in the HO's adjudication of guilt. It was based on credible evidence in the record. Neither did she err in refusing to allow inmates to be called to testify at Velez's hearing. Substantial evidence exists supporting the agency's conclusion; we therefore defer, even if we might have reached a different result. In re Vineland Chem. Co., 243 N.J. Super. 285, 309 (App. Div.), certif. denied, 127 N.J. 323 (1990).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION