DAVID MUSCIOTTO VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4239-18T3
DAVID MUSCIOTTO,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted September 22, 2020 – Decided October 16, 2020
Before Judges Yannotti and Haas.
On appeal from the New Jersey Department of
Corrections.
David Musciotto, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Niccole L. Sandora, Deputy
Attorney General, on the brief).
PER CURIAM
David Musciotto, an inmate in the State's correctional system, appeals
from a final determination of the New Jersey Department of Corrections
(NJDOC), which found that he engaged in a fight with another inmate and
imposed disciplinary sanctions. We affirm.
In March 2019, Musciotto was incarcerated at Southern State Correctional
Facility (SSCF). On March 19, 2019, at around 7:15 p.m., Corrections Officer
Shatiera Smith observed Musciotto and inmate Orlando Collins engage in a
physical altercation in front of the kiosk on Unit Six. In her report concerning
the incident, Smith stated that she observed Musciotto and Collins "exchanging
closed fist punches . . ." and ordered the inmates to stop. They complied.
Musciotto was charged with committing prohibited act *.004, fighting
with another person, in violation of N.J.A.C. 10A:4-4.1(a)(1).1 On March 20,
2019, Musciotto was served with the charge. An officer investigated the charge
and referred the matter to a Disciplinary Hearing Officer (DHO) for further
action.
The disciplinary hearing took place on March 25, 2019. Musciotto
requested and was granted the assistance of a counsel substitute. Musciotto pled
1
We note that "[p]rohibited acts preceded by an asterisk (*) are considered the
most serious and result in the most severe sanctions . . . ." N.J.A.C. 10A:4-
4.1(a).
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not guilty to the charge. He claimed he did not fight with the other inmate. His
counsel substitute asserted that Musciotto and Collins had a verbal
misunderstanding, after which Collins hit Musciotto and ran. Musciotto did not
request any witnesses, nor did he did not seek to cross-examine or confront any
adverse witness.
The DHO found Musciotto committed the prohibited act, noting that he
had been observed fighting and did not request other evidence. The DHO
imposed the following sanctions: ninety-one days in administrative segregation,
the loss of fifteen days of recreation privileges, and the loss of sixty days of
commutation time. On the adjudication form, the DHO wrote that the sanctions
were appropriate "to deter further charges."
Counsel substitute filed an appeal to the administrator at SSCF on
Musciotto's behalf. He noted that Musciotto had denied fighting and claimed
Collins admitted attacking Musciotto. He stated that self-defense applies when
"one aggressor" is "being attacked" by the other person, and thus asked the
administrator to rescind the sanctions.
On March 28, 2019, Associate Administrator Michael Ridgeway issued a
final decision on the administrative appeal. Ridgeway found the DHO's decision
was supported by substantial evidence. He noted that Musciotto had not
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presented any evidence to the DHO regarding self-defense, and the sanctions
imposed were "proportionate" to the prohibited act.
On appeal, Musciotto argues: (1) the NJDOC's decision was unreasonable
because there was credible evidence available of video footage of the incident
that shows he did not commit the prohibited act; (2) the NJDOC's factual
conclusions are wide off the mark and manifestly mistaken, in violation of his
right to due process, the applicable statute, and the administrative regulations.
The scope of our review of a final decision of an administrative agency is
"severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8,
27 (1994) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civ. Serv. Comm'n, 93
N.J. 384, 390 (1983)). We can "intervene only in those rare circumstances in
which an agency action is clearly inconsistent with its statutory mission or with
other State policy." Ibid.In an appeal from a final decision of the NJDOC in a prisoner disciplinary
matter, we consider whether there is substantial credible evidence in the record
to support the NJDOC's decision that the prisoner committed the prohibited act.
Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231, 237-38 (App. Div. 2019)
(citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). We also
must consider whether, in making its decision, the NJDOC followed the
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regulations governing prisoner disciplinary matters, which were adopted to
afford inmates due process. See McDonald v. Pinchak, 139 N.J. 188, 194-95
(1995); Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995).
We are convinced there is sufficient credible evidence in the record to
support the NJDOC's decision that Musciotto committed prohibited act *.004,
fighting with another person. As noted, Officer Smith observed Musciotto and
inmate Collins engaging in a physical altercation. In her report, Smith stated
that Musciotto and Collins were "exchanging closed fist punches . . . ."
The record shows that during the disciplinary hearing, Musciotto neither
presented any witness to support his claim that he did not strike Collins, nor did
he seek to cross-examine or confront any adverse witness. There is sufficient
credible evidence in the record to support the DHO's finding that Musciotto
engaged in a fight with Collins.
Musciotto argues, however, that he was denied due process in the
disciplinary process. He contends he was not given sufficient time in which to
formulate a strategy with his counsel substitute. He also claims the DHO did
not consider relevant evidence, specifically a video tape that allegedly recorded
his altercation with Collins.
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We note that Musciotto had the opportunity to raise these issues in the
administrative proceedings and did not do so. Ordinarily, we decline to address
issues that are raised for the first time on appeal. See In re Stream Encroachment
Permit, No. 0200-04-0002.1 FHA, 402 N.J. Super. 587, 602 (App. Div. 2008)
(citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Nevertheless, we are convinced the record does not support Musciotto's
claim that he was denied due process. According to the adjudication form,
Musciotto claimed Collins punched him and he did not return a punch. The
record does not indicate that Musciotto sought additional time to confer with
counsel substitute to prepare this defense, or that additional time was needed.
Moreover, the record does not show that Musciotto asked the NJDOC to
produce the video tape of the incident at the disciplinary hearing. There is
nothing in the record to support Musciotto's claim that the incident was, in fact,
captured on a videotape. Therefore, Musciotto's claim that the NJDOC did not
consider relevant evidence is without merit.
Affirmed.
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