Adan Otero v. New Jersey Department of Corrections ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3841-22
ADAN OTERO,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted November 6, 2024 – Decided November 14, 2024
Before Judges Firko and Augostini.
On appeal from the New Jersey Department of
Corrections.
Adan Otero, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Andrew D. Spevack, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Adan Otero appeals from the June 30, 2023 final agency
decision of the New Jersey Department of Corrections (NJDOC) upholding a
hearing officer's determination that he committed prohibited act *.306, conduct
which disrupts or interferes with the security or orderly running of the
correctional facility, in violation of N.J.A.C. 10(A):4-4.1(a)(2)(xix). We affirm.
I.
We derive the facts from the record. Otero is an inmate at the Adult
Diagnostic Treatment Center (ADTC) at Avenel. On June 25, 2023, while Otero
was in the gym, Officer Zachary Zieniuk conducted a routine search of Otero's
cell. Officer Zieniuk found several folders containing pornographic materials:
one full-color pornographic image, twenty-four photocopied pornographic
images, and nineteen drawn pornographic images. Otero was charged with
prohibited act .210, possession of anything not authorized for retention, in
violation of N.J.A.C. 10A:4-4.1(a)(4)(iii), and was transferred to a Prehearing
Disciplinary Detention Housing Unit by Officers Malone and Scott.1
The next day, while Otero was in the Housing Unit, Officer Zieniuk
returned to Otero's cell to pack his belongings for storage and discovered an
envelope and a letter under his bed containing an additional seventy-nine
1
Officers' Malone's and Scott's first names are not contained in the record.
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photocopied pornographic images on several sheets of paper. The folder had
multiple copies of the same images of penetrative and non-penetrative
pornography. Officer Zieniuk charged Otero with *.306, .709, failure to comply
with a written rule, and another .210 count.
On June 26, 2023, the NJDOC initially sent a notice to Otero scheduling
a single hearing before a Disciplinary Hearing Officer (DHO) for only the .210
charge. On June 27, 2023, the NJDOC sent another notice to Otero advising all
cited charges would be scheduled for a single hearing on June 28, 2022. Otero
requested and was granted counsel substitute.
At the hearing before DHO Leslie Russell, the DHO reviewed reports
from Sergeant Pionetul 2; a medical report; use-of-force reports; and a
contraband-seizure report. On the *.306 charge, the DHO also reviewed Otero's
evidence, his oral statement, the seizure-and-contraband report, and Office
Zieniuk's report. In his defense, Otero produced copies of N.J.A.C. 10A:47-10
and 10A:18-9.5(a), in support of his request for leniency.
Otero pled guilty to the June 25, 2023 .210 possession charge, and the
June 26, 2023 *.306 conduct charge. Otero acknowledged at the hearing that he
"shouldn't have had [the images] in the first place," it was his "own choice" to
2
Sergeant Pionetul's first name is not contained in the record.
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keep them, and that he "should've gotten rid of them." Otero stated he had "no
use for" the photographs and that he was "sorry." Nonetheless, Otero requested
leniency and a suspended sentence based on his favorable disciplinary record.
Otero and his counsel substitute signed the Adjudication of Disciplinary Charge
Report, confirming the accuracy of the information contained in the report.
DHO Russell found Otero guilty of *.306, which he pled guilty to. The
DHO determined that Otero did not produce any evidence to discredit the
NJDOC reports documenting his possession of pornographic images in his cell.
In addition, the DHO observed that it was unreasonable to conclude Otero
possessed multiple copies of the same pornographic materials for his personal
use only. Thus, the DHO concluded that Otero's actions disrupted the security
and orderly running of the ADTC in violation of *.306.
Regarding the first .210 charge, Otero received a reduced on-the-spot
sanction. The DHO dismissed both the .709 failure to comply with a written
rule charge and the second .210 possession charge as redundant to the June 25,
2023 charge.
The DHO assessed a sanction on the *.306 violation of sixty days of
placement in the Restorative Housing Unit and thirty days' loss of core
privileges. In assessing the sanction, the DHO considered Otero's history at
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ADTC and noted he had been charge-free since 2011, and considered the
NJDOC's need to deter future disruptive behavior at the ADTC.
Otero appealed the DHO's decision, claiming he was improperly charged
with *.306 because the pornographic materials were discovered during a routine
cell search, and therefore, he should not have been charged with an "on the spot"
correction under N.J.A.C. 10A:4-7.1, and given a disciplinary report under
N.J.A.C. 10A:4-7.1.
The DHO's decision was received by Assistant Superintendent John
Cichocki, who upheld the DHO's decision. Cichocki determined the procedures
set forth in N.J.A.C. 10A were complied with and that the DHO's decision was
based on "substantial evidence." Cichocki also upheld the sanctions imposed as
"proportionate" to the offense and the declination of leniency. This appeal
followed.
On appeal, Otero presents the following arguments for our consideration
in his initial merits brief:
1. HEARING OFFICER'S FINDING OF GUILT WAS
NOT BASED ON SUBSTANTIAL CREDIBLE
EVIDENCE IN THE RECORD.
2. THE FINAL AGENCY DECISION FAILED TO
ARTICULATE A SUFFICIENT STATEMENT OF
REASONS FOR UPHOLDING THE HEARING
OFFICER'S FINDING OF GUILT.
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3. THE [NJDOC] VIOLATED [OTERO'S]
PROCEDURAL DUE PROCESS RIGHTS BY
SHIFTING THE BURDEN OF PROOF TO . . .
[OTERO]. N.J. CONST. ART. I, ¶ 1.
In his reply brief, Otero raises two points, the second one with subparts:
POINT I
[OTERO'S] RIGHT TO APPEAL AND HIS DUE
PROCESS RIGHTS WERE VIOLATED BECAUSE
OF A LACK OF A LEGIBLE RECORD. N.J. CONST.
ART. I, ¶ 1; N.J. CONST. ART. VI, . . . ¶ 4; R. 2:2-
3(a)(2).
POINT II
[NJDOC'S] GUILTY FINDING WAS ARBITRARY,
CAPRICIOUS AND UNREASONABLE AND IS NOT
BASED ON SUBSTANTIAL CREDIBLE EVIDENCE
IN THE RECORD. N.J. CONST. ART. I, ¶ 1; N.J.A.C.
10A:4-9.15.
1. HEARING OFFICER'S FINDING OF
GUILT WAS NOT BASED ON
SUBSTANTIAL CREDIBLE EVIDENCE IN
THE RECORD.
2. THE FINAL AGENCY DECISION FAILED
TO ARTICULATE A SUFFICIENT
STATEMENT OF REASONS FOR
UPHOLDING THE HEARING OFFICER'S
FINDING OF GUILT.
3. THE [NJDOC] VIOLATED [OTERO'S]
PROCEDURAL DUE PROCESS RIGHTS
BY SHIFTING THE BURDEN OF PROOF
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TO THE APPELLANT. N.J. CONST. ART.
I, ¶ 1.
II.
Appellate review of a final decision made by the NJDOC is "limited."
Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). As
we have long recognized, "[p]risons are dangerous places, and the courts must
afford appropriate deference and flexibility to administrators trying to manage
this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576,
584 (App. Div. 1999). "We [therefore] defer to an agency decision, and do not
reverse unless it is arbitrary, capricious or unreasonable or not supported by
substantial credible evidence in the record." Jenkins v. N.J. Dep't of Corr., 412
N.J. Super. 243, 259 (App. Div. 2010); see also In re Stallworth, 208 N.J. 182,
194 (2011) ("A reviewing court 'may not substitute its own judgement for the
agency's, even though the court might have reached a different result.'" (quoting
In re Carter, 191 N.J. 474, 483 (2007))). This customary deference stems from
the "[w]ide discretion afforded to administrative decisions because of an
agency's specialized knowledge." In re Request to Modify Prison Sentences,
242 N.J. 357, 390 (2020).
Applying these well-settled principles, we affirm the NJDOC's final
agency decision. Here, the DHO relied on sufficient and substantial credible
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evidence to conclude that Otero engaged in conduct which disrupted or
interfered with the security or orderly running of the ADTC. Moreover, Otero
pled guilty to the *.306 charge, which he challenges on appeal. Otero was
offered the opportunity to call witnesses on his behalf at the hearing but declined
to do so. He was also provided the opportunity to confront and cross -examine
the NJDOC's witnesses but declined the opportunity to do so.
Otero points to no provision of the New Jersey Administrative Code that
was transgressed during the incident in question. Accordingly, we are satisfied
that the sanctions imposed were proportionate to the offense found.
In his reply brief, Otero advances a new argument—that his due process
rights were violated because of a lack of a legible record. Our case law does not
allow an appellant to raise a new argument in reply. See State v. Smith, 55 N.J.
476, 488 (1970) (stating that it is improper to raise new issues in a reply brief).
Nonetheless, for purposes of completeness, we address the argument.
Otero merely states in his reply brief: "For this point, [Otero] relies on
his [m]erits [b]rief and [a]ppendix in support of this argument." Otero does not
identify specifically what portion of the record is illegible. Our examination of
the record reflects that all evidence considered against Otero consists of reports
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prepared by identified NJDOC officers and staff with direct knowledge of the
incidents concerned.
Moreover, any words that Otero claims are "indecipherable" in the DHO's
report are contained and decipherable in other places in the record. The DHO's
summary of the evidence states:
[Otero] offers no statement, no evidence to discredit
part A staff reports; I/P possessed 79 photo copies
pornographic images; I/P statement noted. D1, 2 (2 pgs
noted). However, no evidence to support as multiple
copies of same image confiscated and it is not
reasonable to believe I/P possessed multiple copies for
personal use only. Note possession of multiple
copies/act disrupts the security/orderly running ADTC.
Charge as written has merit. All relied on.
The sanctions imposed were also clearly stated in the record to "deter
disruptive behavior" acknowledging Otero was charge-free since 2011. The
report at paragraph nine reflects that Otero checked the "guilty" box. Thus, we
reject his argument.
To the extent we have not addressed them, all other arguments raised by
Otero lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(D), (E).
Affirmed.
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