EMIL RUSCINGNO VS. NEW JERSEY DEPARTMENT OF CORRECTIONSÂ (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5577-14T3
EMIL RUSCINGNO,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted May 23, 2017 – Decided June 30, 2017
Before Judges Fisher and Leone.
On appeal from the New Jersey Department of
Corrections.
Emil Ruscingno, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Christopher C. Josephson, Deputy Attorney
General, on the brief).
PER CURIAM
Inmate Emil Ruscingno appeals from a July 23, 2015 order by
the New Jersey Department of Corrections (DOC) imposing
disciplinary sanctions. We affirm.
I.
Appellant is presently serving a life sentence for murder,
armed burglary, drug possession, and weapons offenses. He was
incarcerated at Northern State Prison.
The following facts appear in the DOC's June 18, 2015
Disciplinary Reports and the DOC's June 17, 2015 Seizure of
Contraband Report. On June 17, 2015, prison officials received
an anonymous note that appellant's cellmate was planning an escape.
Accordingly, the officials conducted a search of their shared
cell.
The officials uncovered several contraband items in the
search, including 364 stamps found within each inmate's
belongings. The officials also uncovered several brown paper bags
containing various food items and stamps. Some bags contained
handwritten lists indicating the items enclosed and prices.
The food items discovered included items available for
purchase through the prison canteen, and large quantities of items
from the kitchen not available for purchase, such as sugar packets,
condiments, and water bottles of cooking oil. The reporting
investigator concluded, based on her training and experience, that
the confiscated contraband indicated appellant and his cellmate
were running a business selling food items.
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The officials also found three stingers (immersion heating
coils), a homemade hot plate, a lightbulb, an antenna, a water
bottle containing bleach, three floppy disks, ten aluminum pans,
a cable wire with a splitter, a television, and gambling
paraphernalia. These "prohibited items" were all forbidden to
inmates.
Appellant was charged with prohibited acts *.153
"stealing(theft)," .210 "possession of anything not authorized for
retention or receipt by an inmate or not issued to him or her
through regular correctional facility channels," .705 "operating
a business," and .709 "failure to comply with a written rule or
regulation of the correctional facility," all in violation of
N.J.A.C. 10A:4-4.1(a) (2014).
Appellant pled guilty to .709, pled not guilty to .210 and
.705, and entered no plea to *.153. He was offered the opportunity
to call witnesses on his behalf and confront and cross-examine
adverse witnesses but declined both offers. At the conclusion of
the adjudication hearing, the hearing officer found appellant
guilty of all four charges. Appellant was sanctioned with a total
of thirty days of detention, 270 days of administrative
segregation, loss of sixty days of commutation time, and loss of
thirty days of recreational privileges. The Assistant
Superintendent upheld the imposition of sanctions.
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Appellant makes the following argument on appeal:
THE DECISION OF THE HEARING OFFICER VIOLATES
APPELLANT'S RIGHT TO DUE PROCESS AND IN THE
INTEREST OF JUSTICE SHOULD BE VACATED.
II.
"Prison disciplinary proceedings are not part of a criminal
prosecution, and the full panoply of rights due a defendant in
such proceedings does not apply." Jenkins v. Fauver, 108 N.J.
239, 248-49 (1987) (quoting Wolff v. McDonnell, 418 U.S. 539, 556-
57, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 950-51 (1974)).
Initially set forth by our Supreme Court in Avant v. Clifford,
67 N.J. 496, 525-46 (1975), the due process rights that must be
afforded to inmates are now codified in a comprehensive set of DOC
regulations, N.J.A.C. 10A:4-9.1 to -9.28. These regulations
"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." Williams v. Dep't of Corr., 330 N.J.
Super. 197, 203 (App. Div. 2000) (citing McDonald v. Pinchak, 139
N.J. 188, 202 (1995)).
"Our role in reviewing the decision of an administrative
agency is limited." Figueroa v. N.J. Dep't of Corr., 414 N.J.
Super. 186, 190 (App. Div. 2010). "We defer to an agency decision
and do not reverse unless it is arbitrary, capricious or
unreasonable or not supported by substantial credible evidence in
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the record." Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243,
259 (App. Div. 2010). Nonetheless, we must "engage in a 'careful
and principled consideration of the agency record and findings.'"
Williams, supra, 330 N.J. Super. at 204 (quoting Mayflower Sec.
Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We must hew to our
deferential standard of review.
III.
"A finding of guilt at a disciplinary hearing shall be based
upon substantial evidence that the inmate has committed a
prohibited act." N.J.A.C. 10A:4-9.15(a). "'Substantial evidence'
means 'such evidence as a reasonable mind might accept as adequate
to support a conclusion.'" Figueroa, supra, 414 N.J. Super. at
192. There was substantial credible evidence to support each of
the charges here.
The hearing officer's finding of stealing, *.153, was
supported by appellant's admission that he worked in the kitchen
and "would take" the sugar packets and condiments later found in
his cell. This charge was also substantiated by the large
quantities of kitchen items found in appellant's cell that were
unavailable for sale to the inmates.
The numerous prohibited items found in appellant's cell
supported the hearing officer's finding of "possession of anything
not authorized for retention or receipt by an inmate or not issued
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to him or her through regular correctional facility channels."
N.J.A.C. 10A:4-4.1(a), .210 (2014). Appellant asserts his
cellmate admitted to and was found guilty of possessing these
particular items. However, "possession can be jointly shared by
several persons." State v. Brown, 80 N.J. 587, 597 (1979).
Under prison rules, an inmate was only permitted to possess
eighty stamps at a time. Appellant admitted to prison officials
he possessed "at least two-hundred and fifty" of the 364 stamps
found. That was sufficient to support the hearing officer's
finding of "failure to comply with a written rule or regulation
of the correctional facility." N.J.A.C. 10A:4-4.1(a), .709
(2014). In any event, appellant pled guilty to this charge.
"'Generally, a defendant who pleads guilty is prohibited from
raising, on appeal, the contention that the State violated his
constitutional rights prior to the plea.'" State v. Knight, 183
N.J. 449, 470 (2005) (citation omitted).
Finally, the bags with lists of enclosed items and prices,
were adequate evidence to support the finding that appellant was
"operating a business or group for profit . . . without the
approval of the Administrator." N.J.A.C. 10A:4-4.1(a), .705
(2014).
Due process requires appellant received "written notice of
the alleged violation." McDonald, supra, 139 N.J. at 195.
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Appellant received such notice, with each prohibited act specified
in a separate Disciplinary Report, accompanied with a detailed
description of the alleged infraction, namely the items recovered
from appellant's cell. This was sufficient "to inform him of the
charges and to enable him to marshall the facts and prepare a
defense." Jacobs v. Stephens, 139 N.J. 212, 217 (1995) (quoting
Wolff, supra, 418 U.S. at 565, 94 S. Ct. at 2979, 41 L. Ed. 2d at
956). "Such notice of a specific alleged violation, plus the
amplitude of general notice of prison rules, offenses, sanctions
and the like, . . . fully satisf[ied] constitutional and 'fairness'
requirements of notice." Avant, supra, 67 N.J. at 525.
Appellant contends the identical descriptions of the alleged
infractions in each Disciplinary Report and the failure to specify
which items were allegedly stolen denied him the opportunity to
defend against the charges and thus violated his procedural due
process rights. However, as the charges arose from the same event,
and the same evidence supported multiple charges, this was not
improper. "That this particular conduct may violate [multiple
regulations] does not detract from the notice afforded by each."
See State v. Kittrell, 145 N.J. 112, 129 (1996) (quoting United
States v. Batchelder, 442 U.S. 114, 123, 99 S. Ct. 2198, 2204, 60
L. Ed. 2d 755, 764 (1979)). Moreover, appellant admitted to taking
the sugar and condiments that were confiscated from his cell.
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Thus, appellant has not shown he was prejudiced by the lack of
greater specificity.
Moreover, for each prohibited act, appellant received in the
Disciplinary Report a separate and different "written statement
by the factfinder[] as to the evidence relied on" in adjudicating
him guilty. Avant, supra, 67 N.J. at 523-24 (quoting Morrissey,
supra, 408 U.S. at 488-89, 92 S. Ct. at 2604, 33 L. Ed. 2d at 498-
99).
Finally, appellant argues he was deprived of a liberty
interest in remaining in the general prison population and in
maintaining a reduced custody status. However, a change in
conditions of confinement does not trigger due process protections
unless the change "imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life."
Shabazz v. Dep't of Corr., 385 N.J. Super. 117, 123 (App. Div.
2006). Moreover, "[a] reduction in custody status is a privilege
and not a right." N.J.A.C. 10A:9-4.2.
Appellant's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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