FRANCESCO PISERCHIA v. NEW JERSEY DEPARTMENT OF CORRECTIONS

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Superior Court of New Jersey, Appellate Division.

FRANCESCO PISERCHIA, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

DOCKET NO. A–1395–12T4

Decided: March 26, 2014

Before Judges Sapp–Peterson and Lihotz. Francesco Piserchia, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel;  Andrew J. Sarrol, Deputy Attorney General, on the brief).

Plaintiff Francesco Piserchia, an inmate at a New Jersey State Prison, appeals from a November 16, 2012 decision of the Department of Corrections (DOC), upholding a hearing officer's (HO) findings and conclusion that Piserchia was guilty of prohibited acts *.803  and *.203,  attempted possession or introduction of a prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff, warranting disciplinary sanctions.  N.J.A.C. 10A:4–4.1(a).

Piserchia presents a single point on appeal, which includes various arguments, stating:

APPELLANT HAVING NO CDS IN HIS POSSESSION, AS WELL AS, NO PROOF HE WANTED, ASKED FOR, OR KNEW ABOUT CDS [sic].   SHOULD NEVER HAVE BEEN FOUND GUILTY [sic].   VIOLATIONS IN DUE PROCESS [sic], EVIDENCE ALLOWED TO BE SUBMITTED PAST TIME LINES, AND MISSING EVIDENCE FROM EVIDENCE PACKAGE THAT OFFICER USED TO JUSTIFY PROBABLE CAUSE SHOULD HAVE RESULTED IN A NOT GUILTY VERDICT AS WELL. NOT GRANTING CONFRONTATION HEARINGS OF ACCUSERS, AND POLYGRAPH, AS WELL AS SWAPPING SUBSTITUTE COUNSEL SHOULD HAVE BEEN WARRANTED A FINDING OF NOT GUILTY, OR A NEW FAIR AND IMPARTIAL HEARING AT THE LEAST.

We affirm.

While confined at Southern State Correctional Facility (SSCF), Piserchia called his girlfriend Margaret Colon, who was unavailable.   He left a message with Colon's coworker, who relayed to Colon, Piserchia's request.   Inmate telephone calls are recorded.

Colon was friendly with Christina Taylor, whose boyfriend Santiago Marrero also was an inmate at SSCF. Taylor and Colon went to SSCF to visit their respective boyfriends.   A correction's officer (CO) observed Taylor with a balloon in her mouth, which was later confirmed to contain controlled dangerous substances (CDS).  Taylor informed the arresting CO that Colon was also carrying drugs.   Piserchia's visit was terminated and Colon was escorted to an area for questioning.   Colon admitted she had followed Piserchia's request and traveled to Camden with Taylor to obtain CDS. She removed the CDS, hidden on her person, and surrendered the package to the CO. Piserchia was also taken into custody, strip searched and ordered to provide a urine sample, which tested positive for CDS.

Piserchia denied requesting Colon to obtain drugs for him and explained he was unaware Colon possessed CDS. Defendant also suggested he bought drugs from Marrero.   Piserchia was charged with the disciplinary infractions.

The initially scheduled hearing was held three days after the incident.   The hearing was continued to allow the HO to review the proffered evidence and because of a state emergency created by Hurricane Sandy.   Following the hearing, Piserchia was found guilty and sanctioned.   He appealed, and the Associate Administrator of the DOC upheld the guilty finding and sanctions.

On appeal, Piserchia challenges the sufficiency of the evidence, again denying any knowledge of Colon's actions or intentions.   He also maintains he was denied procedural safeguards, suggesting these irregularities require the charges be dismissed or a new hearing held.

The scope of our review of a final decision of an administrative agency is strictly limited.  George Harms Constr.   Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).   Our review is restricted to four inquiries:  1) whether the agency's decision is contrary to the State or Federal Constitution;  2) whether the agency's action violates either express or implied legislative policies;  3) whether there is substantial credible evidence in the record as a whole to support the agency's decision;  and 4) whether, in applying the law to the facts, the agency clearly erred in reaching a decision that could not reasonably have been made on consideration of the relevant factors.  Ibid. “We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record.”  Johnson v. Dep't of Corr., 375 N.J.Super. 347, 352, (App.Div.2005) (citation omitted).

Prison disciplinary hearings are not criminal prosecutions and an inmate is not entitled to the “ ‘full panoply of rights' ” as is a defendant in a criminal prosecution.  Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L. Ed.2d 484, 494 (1972)).   The procedural due process requirements articulated in Avant were reaffirmed by the Court in McDonald v. Pinchak, 139 N.J. 188, 194–99 (1995).   Specifically, an inmate charged with a disciplinary infraction is entitled to written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, and, in certain circumstances, the assistance of counsel substitute.  Avant, supra, 67 N.J. at 525–33.   See also Jacobs v. Stephens, 139 N.J. 212, 217–18 (1995) (tracing the history of protections afforded prisoners in administrative hearings).

Various provisions of Title 10A of the Administrative Code address these procedural due process protections afforded to inmates charged with disciplinary infractions.   We cannot ignore that “the administrative rules and regulations that govern the fulfillment of due-process rights for prisoners are balanced against the needs and objectives of the prison” to assure the safety and security of those confined, prison personnel, and the public.  McDonald, supra, 139 N.J. at 194.   Having carefully considered the record in light of this standard of review, we are convinced the DOC's determination does not violate these standards.  Figueroa v. Dep't of Corr., 414 N.J.Super. 186, 191–93 (App.Div.2010).

Here, Piserchia asserts he was not seen for his initial hearing for twelve days, rather than the three-day period set forth in N.J.A.C. 10A:4–9.8(c).  Piserchia argues he was prejudiced because he was held in temporary closed custody for twelve days for an infraction that carries a sanction of only fifteen days.

The incident occurred on October 21, 2012, and Piserchia was charged on October 24, 2012;  the first hearing was held the following day.   At that time, counsel substitute was named, Piserchia entered his plea, and the HO identified evidential statements to be considered.   The hearing was continued because the evidence package was not complete.   The matter was rescheduled for October 26, and adjourned to October 29.   However, on that date as well as the next proposed date, the hearing's resumption was prevented by the state of emergency declared due to Hurricane Sandy.   When the matter resumed, the audio tapes of Piserchia's telephone conversations were admitted and the HO required additional time to review the evidence before she issued a final determination.   Piserchia did not raise this issue before the HO, but argued it in his administrative appeal.

Contrary to Piserchia's assertion, “[t]he failure to adhere to any of the time limits prescribed [in the Administrative Code] shall not mandate the dismissal of a disciplinary charge.”  N.J.A.C. 10A:4–9.9. Further, we reject Piserchia's suggestion that the HO misapplied her discretion by continuing the final disposition.   An HO is granted discretion in this regard, and may adjourn final disposition after considering the reasons for the possible prejudice caused resulting from an alleged delay.   The seriousness of this infraction, which involved visitors smuggling CDS into the prison to multiple inmates, undermining the safety and security of the prison, produced a great deal of evidence, which the HO needed to review.   Further, safety concerns caused by the unprecedented storm necessitated a delay.   We cannot conclude the adjournments represented an abuse of the HO's discretion, and, therefore, we reject this claim as warranting relief.

Piserchia's contentions he was denied the opportunity to confront witnesses and to participate in a polygraph exam are baseless.   The record demonstrates Piserchia was advised of his right to call fact witnesses, present documentary evidence, N.J.A.C. 10A:4–9.13, and confront witness, N.J.A.C. 10A:4–9.14, which he declined.   We also find no evidence his counsel substitute was changed, as the final disposition includes the signature of his initial counsel substitute.

Although he now claims he was denied a polygraph exam, we note Piserchia did not advance such a request before the HO or in the administrative appeal.   See Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 230 (1998) (noting an appellate court will consider matters not raised in the prior proceedings only where the issue raised is “of sufficient public concern”) (citations omitted).   Even if he had submitted such a request, the HO is not compelled to grant it.   Pursuant to N.J.A.C. 10A:3–7.1(c), “[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request.”   In this regard, we do not find Piserchia's claim that he did not know Colon possessed CDS created a sufficient credibility issue to necessitate resolution by a polygraph.   See Ramirez v. Dept. of Corr., 382 N.J.Super. 18, 20 (App.Div.2005) (“[A]n inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process.”).   Rather, other evidence sufficiently refutes such a notion and removes the propriety of administering such a test, including proof of Piserchia's drug use and recordings of his telephone calls.

Piserchia also states the initial charges reference correspondence he allegedly sent Colon, yet no such communications were produced.   Were the unproduced letter the sole support for the charge, relief would be warranted.   However, the record belies his suggestion this correspondence was the foundation of the charges or played any integral part in evaluating whether he was guilty.   He also cites factual errors in the initial report.   Having reviewed his claims against all the evidence, we cannot agree they were significant or caused him confusion in presenting his defense.

Challenging the sufficiency of the evidence, Piserchia additionally points out he was not found to possess CDS, denied knowledge of Colon's scheme, and asserts the audio recordings of his telephone conversations did not mention drugs.   He advanced the same position in the agency proceedings, which was found unavailing.

As noted, an agency decision must be supported by substantial evidence found in the record.   Substantial evidence is defined as “such evidence as a reasonable mind might accept as adequate to support a conclusion.”  In re Application of Hackensack Water Co., 41 N.J.Super. 408, 418 (App.Div.1956).   “Where there is substantial evidence in the record to support more than one regulatory conclusion, ‘it is the agency's choice which governs.’ ”  In re Vineland Chem. Co., 243 N.J.Super. 285, 307 (App.Div.) (quoting DeVitis v. N.J. Racing Comm'n, 202 N.J.Super. 484, 491 (App.Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990).

The DOC produced overwhelming direct and circumstantial evidence of Piserchia's guilt.   The proofs included:  reports recording the CO's observations and investigations;  sworn statements by Taylor and Colon detailing the plan and Piserchia's role in it;  the CDS surrendered by Taylor and Colon while visiting at SSCF;  audio recordings of Piserchia's prior telephone calls referencing his instruction for Colon to pick up the item that had discussed;  Piserchia's positive drug test, showing he was using CDS despite being confined;  and the involvement of and Piserchia's relationship with inmate Marrero.

Piserchia has not demonstrated the DOC's decision was arbitrary, capricious, unreasonable, or in violation of either the enabling statute or implementing regulations.   See Bowden v. Bayside State Prison, 268 N.J.Super. 301, 304 (App.Div.1993) (holding that “[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant”), certif. denied, 135 N.J. 469 (1994).   We conclude the agency's determination was grounded in the facts of record and well within its regulatory authority.   The substantial evidence in the record supports the hearing officer's findings, which were adopted by the agency in its final determination.   Those findings support the conclusion that defendant engaged in conduct prohibited by the prison for which sanctions were imposed.

Affirmed.

PER CURIAM

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