FRANCIS PRETO VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1181-19
FRANCIS PRETO,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted January 26, 2021 – Decided February 11, 2021
Before Judges Haas and Mawla.
On appeal from the New Jersey Department of
Corrections.
Francis Preto, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Christopher C. Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Francis Preto, an inmate currently in the custody of the
Department of Corrections (DOC), appeals from the DOC's final administrative
decision denying his request to have his former attorney mail him a compact
disc (CD), which is a contraband item that an inmate is not permitted to possess
in prison. We affirm.
Preto alleges that he wants to file a second petition for post-conviction
relief (PCR). While preparing to represent Preto in an earlier proceeding, one
of his former attorneys interviewed a witness and recorded the conversation onto
a CD. In preparing to file his PCR petition, Preto asked the attorney to send him
the CD through the mail so he could review it. As noted above, an inmate is not
permitted to possess a CD and, therefore, the DOC advised Preto that the item
could not be mailed directly to him.
Instead, the DOC provided Preto with a number of reasonable alternatives
by which he could gain access to the information on the CD. First, Preto's
former attorney could arrange a "legal visit" with Preto, bring the CD to the
prison along with a CD player, and play the CD for Preto during the meeting.
Second, the attorney could send a paralegal to meet with Preto at the prison in
order to play him the CD. Third, the attorney could transcribe the interview and
mail the transcript to Preto. Fourth, the attorney could schedule a "legal
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telephone call" with Preto and play him the CD over the telephone. Finally,
Preto could apply to the Office of the Public Defender for legal representation
and, if approved, the attorney assigned could review the CD with Preto during a
visit or arrange for it to be transcribed for him.
Preto declined all of these options and pursued the matter through the
DOC's grievance procedures. On October 31, 2019, the prison administrator
denied Preto's request in a written decision. This appeal followed.
On appeal, Preto argues that the DOC's "refusal to allow [him] to receive
and retain legal discovery material violates his right to access to the courts, due
process and fundamental fairness." The scope of our review of an agency
decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "An appellate court
ordinarily will reverse the decision of an administrative agency only when the
agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported
by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of
Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting
Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Applying these principles, we conclude that Preto's argument is without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D)
and (E). An inmate is not permitted to possess contraband. Nevertheless, the
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DOC made appropriate arrangements to enable Preto to obtain access to the
information on the CD and, therefore, did not violate his constitutional rights.
Affirmed.
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