                        NOT FOR PUBLICATION WITHOUT THE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-4653-15T3

CARLOS OLAVARRIA,

        Appellant,

v.

NEW JERSEY DEPARTMENT OF
CORRECTIONS,

        Respondent.

___________________________________

              Submitted November 15, 2017 – Decided July 9, 2018

              Before Judges Fuentes and Koblitz.

              On appeal from the New Jersey Department of
              Corrections.

              Carlos Olavarria, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Lisa A. Puglisi,
              Assistant Attorney General, of counsel;
              Gregory R. Bueno, Deputy Attorney General, on
              the brief).

PER CURIAM

        At all times relevant to this appeal, Carlos Olavarria was

an inmate at Northern State Prison in Newark, serving a six-year
term     of   imprisonment,        with       sixty-one     months    of     parole

ineligibility,      for   second    degree      kidnapping,      N.J.S.A.    2C:13-

1(b)(2) and N.J.S.A. 2C:13-1(c)(1).                Olavarria appealed from the

final decision of the Department of Corrections (DOC) dated May

25, 2016, that found him guilty of committing a disciplinary

infraction    in    the   form     of     prohibited       act   *.009,    "misuse,

possession, distribution, sale, or intent to distribute or sell,

an electronic communication device, equipment, or peripheral that

is capable of transmitting, receiving, or storing data and/or

electronically transmitting a message, image, or data that is not

authorized    for   use   or   retention       .   .   .   ."    N.J.A.C.    10A:4-

4.1(a)(1)(v).

       As a sanction, the hearing officer recommended that appellant

be placed in administrative segregation for 181 days, lose 181

days of commutation time, permanently lose contact visits, and

lose thirty days of recreation privileges.                 The DOC accepted the

hearing officer's recommendations and imposed these sanctions.

       Appellant argues the regulation that defines prohibited act

*.009 was adopted before the DOC entered into a contract with JPAY

Inc., a company that sells to inmates an electronic device called

"JP5."    According to appellant, the JP5 device allows inmates to

purchase and download music and electronic games, and compose and

leave e-messages to friends and family members. The DOC authorizes

                                          2                                 A-4653-15T3
the recipients to access and retrieve these messages by logging

onto JPay's website.   The DOC does not dispute appellant's account

of the JP5 device's use and capabilities.

     The JP5 device sold to inmates is designed to be powered by

four AA batteries.   According to appellant, the batteries are sold

exclusively by the DOC and last a maximum of ten to twelve hours.

The DOC found appellant misused the device within the meaning of

*.009, because he altered the JP5's power source.       Appellant used

the wires of his television's headphones to power the JP5 through

the television, thus obviating the need to use AA batteries as the

exclusive power source.

     Appellant   presented   a   written   statement   to   the   hearing

officer in which he stated:

          There is no evidence to support this charge
          as written and therefore it should be
          dismissed.

          Moreover, for argument sake, even if the
          tablet was attached to the TV, which the video1
          proved it was not, it does not warrant a *.009
          charge as the tablet does not meet the
          definition   of   a    communication   device.
          Furthermore, it would be misuse of the

1
  In his statement to the hearing officer, appellant refers to a
video recording made by the DOC on May 12, 2016 that shows
Correction Officer Saunders stepping out of appellant's cell
carrying the television set on his left hand "and his right hand
was empty."     According to appellant, the video recording
corroborates his account that the tablet was not connected to the
television.   This alleged video recording is not part of the
appellate record.

                                   3                              A-4653-15T3
           [t]elevision, not the tablet where there is
           no evidence to support it was hooked up to the
           TV.

Under these circumstances, appellant argues the most he could have

been charged with was disciplinary infraction .453, "using any

equipment or machinery contrary to instructions or posted safety

standards[.]"    See N.J.A.C. 10A:4-4.1(a)(5)(xi).

      The DOC emphasizes that its decision to approve the use of

the JP5 device for inmate use included requiring inmates to power

the   tablets   only   with   batteries.      Because   inmates   are     not

authorized to modify the way the device is charged or powered, the

DOC argues that "charging the tablet in any other manner is

tantamount to misuse of the device."

      As an intermediate appellate court, we are bound not to

disturb an agency's ultimate determination unless the decision is

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

substantial credible evidence in the record as a whole.'"             In re

Stallworth, 208 N.J. 182, 194 (2011) (alteration in original)

(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

Furthermore,    "'when   reviewing   agency    decisions,   we    defer    to

matters that lie within the special competence of an administrative

tribunal.'"     Mejia v. N.J. Dep't of Corr., 446 N.J. Super. 369,

376 (App. Div. 2016) (quoting Balagun v. N.J. Dep't of Corr., 361

N.J. Super. 199, 202 (App. Div. 2003)).

                                     4                              A-4653-15T3
     N.J.A.C. 10A:1-2.2 defines "electronic communication device"

to include "equipment and/or peripherals that can be used with an

electronic communications device such as power cords, chargers,

or   any   other    tangible     items."      Altering    the     television's

headphones' cord to enable it to charge the JP5 and thereby

dispense with the use of batteries as its exclusive power source

can be viewed as misuse of the JP5 device within the meaning of

*009.      N.J.A.C.   10A:4-4.1(a)(1)(v).        Stated       differently,   the

security of a penal institution can be compromised if electronic

devices    are    altered   in   any   manner   that     is    not   officially

authorized.      Under these circumstances, strict enforcement of such

a policy is not arbitrary, capricious, or unreasonable.

     We cannot conclude our analysis without acknowledging the

following issue.       Although not directly raised by appellant, we

are compelled to note the regulatory incongruity created by the

draconian sanction of "permanent loss of contact visits" imposed

on appellant.      Pursuant to N.J.A.C. 10A:1-2.2, the DOC adopted a

“Zero   Tolerance     for   Misuse     or   Possession    of    an   Electronic

Communication Device Policy."          The policy codified therein:

            establishes that inmates who are found guilty
            of an electronic communication device related
            prohibited act as set forth in N.J.A.C. 10A:4-
            4.1, 5.1, and 12 shall have their contact
            visit privileges terminated and shall be
            ineligible for consideration for any custody
            status lower than medium custody until after

                                        5                               A-4653-15T3
           the contact visit privileges are reinstated
           in addition to being subject to administrative
           action and program requirements in accordance
           with N.J.A.C. 10A:4, Inmate Discipline.

           [N.J.A.C. 10A:1-2.2 (emphasis added).]

      N.J.A.C. 10A:18-6.20(a) further provides:

           An inmate may request the reinstatement of
           contact visit privileges that were terminated
           in accordance with N.J.A.C. 10A:4-5.1 and 12.
           After 365 days from the date the sanction was
           imposed, the inmate may forward a written
           request for reinstatement of contact visit
           privileges to the Administrator or designee.
           If a request is not produced by the inmate,
           no consideration of reinstatement shall be
           extended. The Administrator or designee shall
           review   and   approve   or   disapprove   the
           reinstatement of contact visit privileges. The
           inmate may appeal the decision of the
           Administrator or designee to the Assistant
           Commissioner   or   designee,    Division   of
           Operations.

           [(Emphasis added).]

The   mechanism   for   reinstatement   of   personal   contact    visits

established in N.J.A.C. 10A:18-6.20(a) appears to be facially

irreconcilable with the imposition of permanent loss of contact

visits imposed here.    However, we have decided not to address this

issue because the official DOC website reflects that appellant was

released on May 10, 2018.

      Affirmed.




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