September 27, 2007
KYLE WYNDER, PETITIONER-APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT-RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2007
Before Judges Payne and Messano.
Petitioner, Kyle Wynder, appeals from a final determination of the Department of Corrections imposing disciplinary sanctions on him, consisting of fifteen days of detention, ninety days of loss of commutation time and ninety days of administrative segregation, as the result of Wynder's violation of N.J.A.C. 10A:4-4.1(a) *005, threatening another with bodily harm or with any offense against his or her person or his or her property.
On appeal, Wynder raises the following arguments:
POINT I APPELLANT['S] REQUEST FOR A POLYGRAPH EXAMINATION SHOULD NOT HAVE BEEN IGNORED, SINCE THE VIDEO TAPE WAS "SNOWY" AND [HE] WAS LEFT WITH NO OTHER WAY TO PROVE HIS INNOCENCE.
POINT II HEARING OFFICER ZANE MAGUIRE FOUND APPELLANT GUILTY OF DISCIPLINARY INFRACTION *.005 WHEN NO SUBSTANTIAL EVIDENCE EXISTED TO SUBSTANTIATE SUCH AN INFRACTION.
The record contains the statement of Corrections Officer John Richardson that, on October 10, 2006, at approximately 5:10 a.m., during the distribution of food to inmates observing Ramadan, the officer opened a prison elevator to permit a food cart to be transported from the first to the second floor. Wynder pushed the food cart part way into the elevator, but when asked to push it the remaining distance, Wynder responded: "Fuck you I got to go up stairs." When Richardson then ordered Wynder to push the food cart into the elevator, Wynder stated: "Fuck you. I'll fuck you up if I have to put the fucking cart on the elevator." According to Richardson, following Wynder's threats, Corrections Officer Bateman, who was also present when the threat was uttered, assisted Richardson in placing Wynder against a wall and handcuffing him. Wynder was then escorted from the scene, and the previously-stated charge was filed against him, as well as a charge pursuant to N.J.A.C. 10A:4-4.1(a) *306, engaging in conduct which disrupts or interferes with the security or orderly running of the correctional facility.
Richardson's statement was corroborated by Officer Bateman, who stated that Wynder had pushed the food cart to the elevator, turned to walk away and, when instructed to push the cart further, responded: "Fuck you I have to get it upstairs." After a second order, Wynder stated: "If I have to push it in I'm going to fuck you up."
The disciplinary charge was delivered to Wynder at approximately noon. During investigation, Wynder stated that he would rely on a video recording of the incident, made by a camera installed in the elevator, to establish the facts of the matter. Following the referral of the charges for a courtline hearing, Wynder pled not guilty and requested designation of a counsel substitute, but he did not request confrontation, and he declined an offer to call witnesses on his behalf.
The hearing was delayed twice to permit the hearing examiner to review the videotape. However, after viewing it, the examiner concluded that the video was "useless" because it was out of focus, snowy and depicted no discernable information regarding the incident. At the hearing, conducted on October 16, 2006, Wynder nonetheless sought to rely on the videotape, and he denied that a confrontation had occurred. Counsel substitute challenged the presence of Officer Bateman as a witness to events and the veracity of his special report, offered at the disciplinary proceeding, arguing that Richardson had failed to note any witnesses in response to a specific query on the disciplinary report form. The hearing examiner rejected Wynder's position, finding:
[Inmate] pled not guilty but is found guilty. There is substantial credible evidence that the [inmate] did threaten the officer, in that the A4*fn1 Bateman report corroborates the Richardson charge. The charge indicates that the [inmate] said "fuck you, I'll fuck you up . . ." and considering the reports both indicate the [inmate] said this in a very loud & aggressive manner, it is found to be a threat. The video was useless, there were no witnesses for his defense & [inmate] declined confrontation. The A1 & A2 clerical error (004)[specifying the wrong charge] is of no consequence.
Wynder was found to have committed disciplinary infraction *005. The *306 disruption charges were dismissed.
On appeal to the Administrator of the Department of Corrections, Wynder claimed that he had been baited by Richardson because of his religion and called a "terrorist," but that he had not responded. Wynder also claimed that he had placed the cart on the elevator without incident, and the video would have confirmed that fact. Finally, he challenged the claim that Officer Bateman was present when the alleged incident took place. Wynder sought rescission of the charge or, alternatively, leniency. However, his requests were denied, and the charge was upheld on October 18, 2006, with the following explanation:
Two staff members witnessed this threat and they are credible. No leniency is warranted. If staff are being inappropriate there are appropriate ways to report those concerns for investigation.
On appeal, Wynder first claims that he requested a polygraph test, and that his request was wrongfully denied. Because our review discloses no evidence of such a request in the record of the adjudication of the disciplinary charge, acknowledged to be accurate by counsel substitute, in Wynder's statement on appeal to the Administrator of the Department of Corrections, or in any other document, we decline to entertain Wynder's belated argument. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Were we to consider Wynder's contention as factually supported, we would nevertheless reject his position. N.J.A.C. 10A:3-7.1(a)1 provides that a polygraph examination may be requested by the Administrator "[w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge." However, "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request." N.J.A.C. 10A:3-7.1(c); see also Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). "[A] polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). Administration of the test is discretionary, and the prison administrator's determination to deny such a test will be deemed arbitrary, capricious and unreasonable only in circumstances in which the refusal to permit a polygraph examination "impair[s] the fundamental fairness of the disciplinary proceeding." Id. at 24.
In Ramirez, we held that no misuse of discretion had occurred as the result of a denial of the prisoner's request for a polygraph examination when the description of the offense given by the reporting officer was corroborated by the eyewitness account of another officer and no inconsistencies involving credibility were presented by their evidence or by investigative reports. Id. at 26. Similarly, the record in the present case reveals that Wynder's conduct was witnessed, that the description of the conduct provided by Officer Richardson was corroborated by the detailed report of Officer Bateman, and that no substantial inconsistencies between the two officers' accounts was demonstrated by the reports themselves or subsequent investigation. Thus, as in Ramirez, no misuse of the administrator's discretion would have occurred if a request for a polygraph examination had been made, and it was denied, as Wynder now claims. Compare Engel v. N.J. Dept. of Corr., 270 N.J. Super. 176, 178 (App. Div. 1994)(determining that denial of a request for a polygraph examination was a misuse of discretion when no objective shred of corroboration existed to support the claim by a confidential informant that the prisoner was planning a prison escape).
Wynder argues additionally that insufficient evidence was presented to support the charge against him and the subsequent disciplinary adjudication. We disagree. The facts set forth in the reports of Officers Richardson and Bernstein provided an adequate foundation for the hearing examiner's conclusion that Wynder had uttered abusive language. Viewed objectively, that language, when delivered (as both the preliminary incident report and the authorization for pre-hearing detention note) in "a loud, aggressive manner," constituted a threat, sufficient to convey a basis for fear. Jacobs v. Stephens, 139 N.J. 212, 222-24 (1995). The threat was thus punishable under N.J.A.C. 10A:4-4.1(a) *005. Id. at 224.