                                NOT FOR PUBLICATION WITHOUT THE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-3828-17T1

EUGENE NAPOLITANO,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                    Submitted March 27, 2019 – Decided April 17, 2019

                    Before Judges Vernoia and Moynihan.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Eugene Napolitano, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa Dutton Schaffer, Assistant
                    Attorney General, of counsel; Michael E. Vomacka,
                    Deputy Attorney General, on the brief).

PER CURIAM
      Eugene Napolitano, an inmate at Northern State Prison, appeals from the

New Jersey Department of Corrections's (DOC) final agency decision finding

he committed three prohibited acts. Based on our review of the record in light

of the applicable law, we affirm.

      On February 23, 2018, a DOC manager observed Napolitano and another

inmate together in a bathroom stall. The manager escorted Napolitano and the

other inmate into a hallway, where a search of Napolitano revealed a plastic bag

containing white powder in one of his sneakers. Napolitano refused any further

search of his person, screamed "No, No," pushed the manager, refused the

manager's order to stay and ran away. As a result of Napolitano's actions, a

count of the inmates was required and conducted, and Napolitano was found in

a bathroom.

      The following day, Napolitano was served with notice of disciplinary

charges alleging he committed the following prohibited acts: *.002, assaulting

any person, N.J.A.C. 10A:4-4.1(a)(1)(ii), *.306, conduct which disrupts or

interferes with the security or orderly running of the correctional facility,

N.J.A.C. 10A:4-4.1(a)(2)(xxix), and *.708, refusal to submit to a search,

N.J.A.C. 10A:4-4.1(a)(2)(xxxv).     On February 27, 2018, a hearing on the

charges was adjourned at Napolitano's request for production of a video


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recording of the incident giving rise to the charges and other information related

to the charges. The *.002 charge was amended to allege prohibited act .013,

unauthorized physical contact with any person, N.J.A.C. 10A:4-4.1(a)(3)(ii),

and the *.708 charge was amended to allege prohibited act .256, refusing to obey

an order of any staff member, N.J.A.C. 10A:4-4.1(a)(4)(iv).1          Napolitano

requested and was assigned a counsel substitute.

      The following day, February 28, 2018, the hearing was again adjourned

for the production of the video recording. On March 2, 2018, the hearing

commenced before a disciplinary hearing officer. The video recording was

reviewed by the hearing officer and Napolitano's counsel substitute. Napolitano

pleaded guilty to the .256 charge, that he refused to obey the manager's order to

remain in the hallway after the plastic bag was discovered. He submitted a

statement denying he committed the other prohibited acts charged against him,

.013 and *.306, and requested leniency for his admitted commission of

prohibited act .256.



1
  We reject Napolitano's assertion that the amendment of the charges establishes
that the charges are based on evidence that is not credible. The amendment of
charges is appropriate and authorized where "an incorrect prohibited act is cited
in the disciplinary report but . . . the inmate may have committed another
prohibited act." N.J.A.C. 10A:4-9.16(a). That is the precise circumstance
supporting the amendment of two of the charges here.
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                                        3
      Based on Napolitano's statements, the reports of the manager and officers

involved in the investigation and the video recording, on March 5, 2018, the

hearing officer determined Napolitano committed prohibited acts .013, .256 and

*.306.   The hearing officer found that after Napolitano was found with

contraband in his sneaker,2 he refused the manager's order to stay for a further

search, pushed the manager and fled. The hearing officer also found defendant

placed himself and other inmates at a risk of injury by running through the

facility and requiring that staff chase him.

      The hearing officer imposed ninety days of administrative segregation, a

sixty-day loss of commutation time, a fifteen-day loss of radio and television

privileges and a ten-day loss of recreation privileges on the .013 charge. The

hearing officer merged the *.306 and .256 charges and imposed 180 days of

administrative segregation, a 180-day loss of commutation time, a ten-day loss

of radio and television privileges and a thirty-day loss of recreation privileges

as a sanction.



2
  By February 27, 2018, the recovered contraband had been submitted to the
New Jersey State Police for testing. The record shows that at the time the
contraband was submitted, the State Police laboratory had a six to eight month
backlog. No charges directly related to Napolitano's alleged possession of the
contraband were submitted to the hearing officer, considered by the DOC or
presented on appeal.
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                                        4
      Napolitano appealed the hearing officer's decision. On March 15, 2018,

the DOC upheld the hearing officer's determination, finding it "was based on

substantial evidence and the sanction was proportionate in view of

[Napolitano's] prior disciplinary history." This appeal followed.

      On appeal, Napolitano presents the following arguments:

            POINT I

            THE DECISION OF THE HEARING OFFICER
            VIOLATES DUE PROCESS AND THEREFORE[]
            SHOULD BE VACATED.

            (a) The Decision of the Departmental Hearing Officer
            Should be Vacated Because it was not Based Upon
            Substantial Credible Evidence.

            (b) The Hearing Officer's Failure to Allow Appellant to
            Review the Video Recording Denied him of the Right
            to Consider the Evidence and Due Process.

      Our standard of review of agency determinations is limited. See In re

Stallworth, 208 N.J. 182, 194 (2011); Brady v. Bd. of Review, 152 N.J. 197, 210

(1997); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div.

2010). We will not reverse the decision of an administrative agency unless it is

"arbitrary, capricious, or unreasonable, or [] not supported by substantial

credible evidence in the record as a whole." Stallworth, 208 N.J. at 194 (2011)

(alteration in original) (citation omitted); accord Jenkins v. N.J. Dep't of Corr.,


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                                        5
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 v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting

Mayflower Sec. Co. v. Bureau of Sec., Div. of Consumer Affairs, 64 N.J. 85, 93

(1973)).

      "Prison disciplinary proceedings are not part of a criminal prosecuti on,

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 (1974)). An inmate's more limited procedural

rights, initially set forth in Avant v. Clifford, 67 N.J. 496, 525-46 (1975), are

codified in a comprehensive set of DOC regulations, N.J.A.C. 10A:4-9.1 to -

9.28. The 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, 330 N.J. Super. at 203.

      We are not persuaded by defendant's claim that his due process rights were

violated because he was denied the opportunity to review the video recording of

his actions that the hearing officer reviewed and relied upon to make the findings

that Napolitano committed three prohibited acts. The argument is undermined

by the record.


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                                        6
      The hearing was adjourned on two occasions, at least in part, because

Napolitano requested the video recording. The DOC produced the recording

and Napolitano's counsel substitute reviewed it with the hearing officer before

the hearing concluded.     Moreover, the record is bereft of any evidence

Napolitano requested to review the recording, the DOC denied any request that

either he or his counsel substitute be permitted to review it or Napolitano

objected to proceeding with the hearing without personally reviewing the

recording. Thus, there is no merit to Napolitano's claim he was denied his due

process right to review the video recording.

      Napolitano's other contention—that the evidence was insufficient to

support the DOC's finding he committed prohibited acts—lacks sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(e). We add only that

defendant pleaded guilty to the .256 charge, and the various reports 3 and the

video recording of the incident provide substantial evidence supporting the

hearing officer's and the DOC's determination Napolitano committed the three

prohibited acts for which he was sanctioned. See N.J.A.C. 10A:4-9.15(a).

      Affirmed.



3
  Napolitano declined the DOC's offer to confront the witnesses to the incident
upon which the charges were based. See N.J.A.C. 10A:4-9.14(a).
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