SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4377-17T2

FRANK PADRO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

Submitted September 25, 2019 – Decided

Before Judges Fuentes and Enright. 

On appeal from the New Jersey Department of 

Corrections.

Frank Padro, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Christopher Josephson, Deputy 

Attorney General, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

October 2, 2019
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Appellant Frank Padro, a State inmate, appeals from the Department of 

Corrections (DOC) finding that he was guilty of prohibited act *.205, misuse of 

authorized medication, in violation of N.J.A.C. 10A:4-4.1(a). Padro contends 

the DOC's decision and the sanctions imposed violated his due process rights.

We affirm the adjudication of guilt. 

On the morning of July 12, 2017, Padro was leaving the prison medical 

clinic following a physical therapy session. Before Padro exited the clinic, a 

corrections officer searched him and found a crumpled piece of paper in his

hand. The officer directed Padro to open up the paper, which revealed a crushed 

pill consisting of white powder. Padro maintained the powdery substance was 

prescribed pain medication which he intended to take following his physical 

therapy session. The substance was confiscated and even though medical staff 

were asked to identify it, they could not. Therefore, the substance was sent to 

the State Police Laboratory for testing and it was later determined to be codeine. 

Padro was given an on-site drug test on the morning of the incident and he tested

negative for narcotics. 

The following day, Padro was charged with committing prohibited acts 

*.203, possession or introduction of any prohibited substances, and .210, 

possession of anything not authorized for retention or receipt by an inmate or 
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not issued to him through regular correctional facility channels. The 

disciplinary hearing commenced in July 2017, and at Padro's request, 

confrontation hearings involving two officers were held, but the final hearing 

was postponed pending receipt of the test results from the State Police 

Laboratory. Padro requested, but was denied, confrontation with a particular 

nurse, Nurse Pettorini, as it was determined Nurse Pettorini did not witness the 

incident. Moreover, Padro requested, but was denied, confrontation with Nurse 

Francois, who he claimed, distributed his medication to him on the morning of 

the incident. Padro does not claim Nurse Francois witnessed the incident.

At the final hearing on March 27, 2018, the hearing officer amended 

Padro's charges to a *.205 charge: (1) based upon confirmation that he was 

prescribed medication that is crushed; (2) that such medication would cause a 

positive reading on a urine test; and (3) that the medical staff provided the 

medication on the morning of the incident before he attended the clinic. 

Padro pleaded not guilty to the amended charge. During the adjudication

hearing, he provided a statement, acknowledging the powdery substance found 

on him by a corrections officer was his medication and that he intended to take 

it once his physical therapy session ended. 
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After considering the testimony and the test results from the State Police 

Laboratory confirming the narcotic seized was codeine, the hearing officer 

found Padro guilty of the *.205 charge. The hearing officer concluded Padro

did not take his narcotic medication when it was dispensed to him. Medication 

dispensed on the unit is to be taken when dispensed. Padro violated this protocol 

when he saved his medication for a later time. The hearing officer noted Padro 

had the opportunity to take his medication in the clinic 

but chose not to. If his intent was to take it after 

physical therapy, Padro offers no explanation as to why 

he didn't just leave it in his cell and take the medication 

upon his return to his unit or before reporting to work.

 

The hearing officer observed that the Regional Nurse Manager had 

confirmed the medication Padro is prescribed would cause a "positive" reading 

on a urine test and that Padro was found "on the move with a crushed narcotic 

in his possession." The hearing officer then sanctioned Padro to 270 days of 

administrative segregation, 270 days' loss of commutation time, 30 days' loss of 

recreation privileges, and 365 days of urine monitoring and permanent loss of 

contact visits. 

Padro administratively appealed this decision. On May 8, 2018, the 

Assistant Superintendent at the prison upheld the hearing officer's decision but 

modified the sanctions to 91 days of administrative segregation, 180 days' loss 
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of commutation time, 30 days' loss of recreation privileges, 365 days of urine 

monitoring, and 365 days, rather than permanent loss of contact visits. The 

Assistant Superintendent confirmed she imposed the more lenient sanctions in 

light of Padro's recent disciplinary history. This appeal followed.

On appeal, Padro argues the agency's decision was not based on 

substantial evidence in the record. Further, he maintains he was barred from 

calling a fact witness and presenting exculpatory evidence. In particular, he now 

insists, without proofs, that Nurse Francois gave him permission to take his 

medication after physical therapy. However, he did not raise this claim during 

his adjudication hearing or in the course of his administrative appeal. Moreover, 

he did not complain during his administrative appeal that he was denied 

confrontation with Nurse Francois. 

In Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), the Supreme 

Court held that any issue not properly preserved at the hearing level may not be 

considered at the appellate level unless the issue relates to jurisdiction or 

concerns matters of great public interest. Padro's appeal does not raise 

jurisdictional issues or matters of public interest. Thus, we will not consider 

any arguments not raised during his adjudication hearing or the administrative 

appeal.
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Our review of final administrative agency decisions is limited. Malacow 

v. N.J. Dep't of Corr., 457 N.J. Super. 87, 93 (App. Div. 2018). An 

administrative agency's decision will not be reversed unless it is "arbitrary, 

capricious or unreasonable or it is not supported by substantial credible evidence 

in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 

(1980). "'Substantial evidence' means '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)). 

Here, we are satisfied Padro's guilt was based on sufficient evidence in 

the record, as documented by the hearing officer. Additionally, we note 

prohibited act *.205 is a Category B offense. N.J.A.C. 10A:4-4.1(a)(2)(svii). 

Conviction of this act will: 

result in a sanction of no less than [ninety-one] days 

and no more than 180 days of administrative 

segregation per incident and one or more of the 

sanctions listed at N.J.A.C. 10A:4-5.1(g), unless a 

medical or mental health professional determines that 

the inmate is not appropriate for administrative 

segregation placement.

[N.J.A.C. 10A:4-4.1(a)(2).]

The additional sanctions referenced in N.J.A.C. 10A:4-4.1(a)(2) include:
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1. Loss of one or more correctional facility privileges 

up to 30 calendar days;

2. Loss of commutation time up to 365 calendar days, 

subject to confirmation by the Administrator;

3. Loss of furlough privileges for up to two months;

4. Up to two weeks confinement to room or housing 

area;

5. Any sanction prescribed for On-The-Spot Correction 

(see N.J.A.C. 10A:4-7);

6. Confiscation; and/or

7. Up to 14 hours extra duty, to be performed within a 

maximum of two weeks.

[N.J.A.C. 10A:4-5.1(g).]

If "a medical or mental health professional determines that [an] inmate is 

not appropriate for administrative segregation placement," then that inmate will 

receive one or more of the above seven sanctions, but will not be sanctioned 

with administrative segregation. N.J.A.C. 10A:4-5.1(g). 

We defer to the DOC's zero tolerance drug and alcohol policy, N.J.A.C. 

10A:1-2.2. Because Padro was found guilty of prohibited act *.205, he was 

subject to the termination of contact visit privileges and became ineligible for 

consideration for any custody status lower than medium custody until after 

contact visit privileges were reinstated. N.J.A.C. 10A:4-5.1(p).
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Following our review of the record, we find that not only was there 

substantial, credible evidence of Padro's guilt, but that, as a matter of fairness, 

he was provided adequate due process protections in the filing, processing, and 

hearing of the charges against him. Padro has not demonstrated a deviation from 

the sanction guidelines. Indeed, he was granted leniency in his sanctions based 

on a review of his recent disciplinary history. We discern no legal basis to 

interfere. It is well established that asterisk offenses "are considered the most 

serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a). Here, 

Padro's sanction of ninety-one days of administrative segregation was the 

minimum amount of time required under N.J.A.C. 10A:4-4.1(a)(2), and the 

balance of his sanctions also were within the permissible range of sanctions, 

both before and after they were modified. Padro's remaining arguments do not 

warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).

Affirmed.