NOT FOR PUBLICATION WITHOUT THE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-5140-17T4
WILFREDO CORTES,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________
Submitted October 21, 2019 – Decided December 13, 2019
Before Judges Sumners and Geiger.
On appeal from the New Jersey Department of
Corrections.
Wilfredo Cortes, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Francis A. Raso, Deputy
Attorney General, on the brief).
PER CURIAM
Wilfredo Cortes, an inmate under the care and custody of the New Jersey
Department of Corrections (DOC), appeals from the agency's final
determination, which upheld a finding of guilt and the sanctions imposed against
him for committing prohibited act .552A, being intoxicated while assigned to a
residential community program at Hope Hall, in violation of N.J.A.C. 10A:4-
4.1(a)(3)(xiv). On appeal, Cortes raises the single-point argument:
AGENCY DECISION TO UPHOLD A GUILTY
FINDING WAS NOT SUPPORTED BY ANY
EVIDENCE ON RECORD IN VIOLATION OF NEW
JERSEY RULES OF EVIDENCE 401.
Finding the agency's decision was supported by sufficient credible evidence, we
affirm. See R. 2:11-3(e)(1)(D).
On February 17, 2018, Cortes was a resident at Hope Hall, when at
approximately 2:00 p.m., Substance Abuse Counselor Kimberly Iwu and
Treatment Specialist Katie Gates observed him with red eyes, a flushed face,
and mumbling to himself as he was stumbling out of the bathroom. Believing
he was under the influence of some unknown substance; they reported their
observations to Senior Program Manager Terri Bradley. According to Bradley,
she went to Cortes's room, whereupon she confirmed Iwu and Gates's
observations, and further detected that Cortes eyes were "glassy" and he
appeared "disoriented." After asking Cortes if he was okay, to which he replied
A-5140-17T4
2
"mm-hmm" without moving, she repeated her inquiry and he failed to respond.
Consequently, Cortes was transferred to Garden State Youth Correctional
Facility where he gave a urine sample that proved to be negative for contraband.
Despite the negative urine screening, Cortes was served with a charge of
violating .552A.1 After he pled not guilty, the matter was referred to a
disciplinary hearing officer (DHO) for adjudication.
At the disciplinary hearing, Cortes denied he was intoxicated and
contended his condition at Hope Hall was because he had just woken up. Cortes
did not produce any witnesses and chose not to confront the witnesses against
him. Among the documents the DHO considered were: (1) the written
statements by Iwu, Gates, and Bradley; (2) a Hope Hall incident summary; and
(3) the negative urine sample. The DHO found Cortes guilty, reasoning he was
under the influence based upon the residential staff's statements and the
intoxicating substance was likely non-detectable in the urine screen. Cortes was
sanctioned to ninety days of administrative segregation and sixty days loss of
commutation time. The prison administrator denied Cortes's administrative
1
Cortes was initially charged with prohibited acts .204, the use of any
prohibited substances, N.J.A.C. 10A:4-4.1(a)(2)(xvi), and .257, violating a
condition of a community release program, N.J.A.C. 10A:4-4.1(a)(5)(iv).
(Ra33). It is unclear why the charges were amended to .552A.
A-5140-17T4
3
appeal, explaining the charge had merit, there was compliance with all
disciplinary procedural safeguards, and there was no misinterpretation of the
facts. This appeal followed.
We disagree with Cortes's claim that the final agency decision was
unsupported by substantial credible evidence in the record. An incarcerated
inmate facing a disciplinary proceeding is not entitled to the same spectrum of
rights afforded to a defendant in a criminal prosecution. Avant v. Clifford, 67
N.J. 496, 522 (1975). Yet, "[a] finding of guilt at a disciplinary hearing shall be
based upon substantial evidence that the inmate has committed a prohibited act."
N.J.A.C. 10A:4-9.15(a). "Substantial evidence" is "such evidence as a
reasonable mind might accept as adequate to support a conclusion." Figueroa
v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re
Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). In other words, it is
"evidence furnishing a reasonable basis for the agency's action." Ibid. (quoting
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002)).
"Where there is substantial evidence in the record to support more than one
regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland
Chem. Co., 243 N.J. Super. 285, 307 (App. Div. 1990) (quoting De Vitis v. N.J.
Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div. 1985)).
A-5140-17T4
4
Despite the negative urine sample, the DHO found that Cortes was under
the influence at Hope Hall based on uncontroverted statements by three
residential staff members. The DHO found the statements credible and reasoned
that the substance influencing Cortes's incoherent behavior and appearance was
not detectable in the urine screening. Even considering the higher standard of
proof – beyond a reasonable doubt – required in a quasi-criminal setting,
competent lay testimony of observation is sufficient here to prove intoxication
by substantial evidence without field sobriety tests or Alcotest results. See State
v. Bealor, 187 N.J. 574, 588 (2006) (holding "driving while under the influence
of alcohol will be sustained on proofs of the fact of intoxication–a defendant's
demeanor and physical appearance–coupled with proofs as to the cause of
intoxication–i.e., . . . a lay opinion of alcohol intoxication."). In addition, there
were no witnesses to support his defense that his appearance and conduct were
attributable to him being sleepy at approximately 2:00 p.m.
Based on the record, we conclude the DOC's findings were supported by
substantial credible evidence, and to the extent we have not specifically
addressed arguments raised by Cortes, they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).
Affirmed.
A-5140-17T4
5