February 26, 2008
HERBERT BROWN, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 January 30, 2008
Before Judges Wefing and Lyons.
Herbert Brown (Brown), an inmate at East Jersey State Prison (EJSP), appeals from a final decision issued by the Department of Corrections (DOC) upholding the imposition of prison discipline. We affirm.
On May 7, 2007, at approximately 7:30 a.m., Senior Corrections Officer Kelley and his canine partner "Nikko" performed a narcotic odor sniff of the EJSP minimum camp, recreation yard, and inner perimeter. Nikko, upon performing a narcotic odor sniff in dorm-D at wall locker #58, alerted the officer of a narcotic odor within locker #58, which is assigned to Brown. In the locker, Kelley found one packet of suspected marijuana concealed inside a roll of toilet paper, which was stuffed inside the center panel of the locker door. Based on this discovery, Brown was charged later that morning with prohibited act *.203, possession or introduction of any prohibited substance. N.J.A.C. 10A:4-4.1.
Charges were served upon Brown on the following day. Brown pled not guilty and stated "it's not mine." Brown did not request any witnesses for the scheduled hearing, but did request a counsel substitute. A hearing was held at which time the hearing officer reviewed a disciplinary report, a narcotics field test form, and various other reports. At the hearing, Brown declined to make a statement. His counsel substitute stated that Brown's "urine was clean, and he never had a charge. On the day in question, he was at work. Inmates knew the dog was coming in. He has no prior charges." While Brown was offered the opportunity to confront, present, or cross-examine witnesses, he declined.
The hearing officer found:
Brown is charged with having marijuana. He denies guilt, says someone else put it there. In this case, it was found in his locker, which inmates have the option of locking. In addition, it was concealed inside the panel of the door, which is not indicative of an inmate quickly tossing it in his locker to avoid having it found in his own area. There is substantial evidence of guilt.
After finding Brown guilty, the hearing officer recommended sanctions of ten days of detention, credit for time served, permanent loss of contact visits, ninety-day loss of commutation time, ninety days of administrative segregation (suspended for sixty days), one year of urine monitoring, confiscation of the marijuana, and a referral to the Classification Committee for a status review.
Brown administratively appealed the decision to the prison administrator, and additionally asked that a polygraph test be administered. The administrator's office upheld the guilty finding, the imposition of the sanctions, and denied the request for a polygraph, finding "no credibility issue raised." This appeal followed.
Brown raises two issues on appeal. First of all, he argues that the hearing officer committed error in finding Brown guilty of possession because Brown was at work, and the dormitory locker was broken, such that he could not affix a lock to it. Secondly, Brown argues that he should have been accorded a polygraph examination.
We note at the outset that "[c]courts have a limited role in reviewing a decision of an administrative agency. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We must determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).
Brown argues in his appeal that the latch on his locker was broken and that prohibited him from locking his locker. He, therefore, concludes that this unlocked locker was accessible to the other inmates. Because he was at work at the time the search by the drug sniffing dog occurred, Brown asserts that another inmate, in order to avoid detection, placed the marijuana in his locker. This argument was not advanced below and is not in the record. "Generally, when reviewing trial errors, we confine ourselves to the record." Rudbart v. Bd. of Review, 339 N.J. Super. 118, 122 (App. Div. 2001). Evidence of an issue which is not in the record, cannot be considered. Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div.), certif. denied, 149 N.J. 409 (1997). As we have said, "[a]n issue which is raised for the first time on appeal and is not supported by the record is not properly before this court." Matter of Kovalsky, 195 N.J. Super. 91, 99 (App. Div. 1984). Because Brown did not raise the issue that his locker latch was broken on the record, his argument is not properly before us and cannot be considered.
Brown also argues that the refusal to perform a polygraph examination was improper. We have recently reviewed this issue and noted that:
N.J.A.C. 10A:3-7.1, Use of polygraph examinations with inmates, reads in applicable part:
(a) A polygraph examination may be requested by the Administrator:
1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge. . . .
The code regulation's principal impetus is as an investigative tool of the administrator when serious disciplinary infractions are alleged against an inmate as opposed to an affirmative right granted to the inmate himself.
In Johnson v. New Jersey Department of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997), we determined that an inmate does not have an unqualified right to a polygraph test. Under N.J.A.C. 10A:3-7.1(c), "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request." This administrative code section is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him. Therefore, we conclude that a prison administrator's determination not to give a prisoner a polygraph examination is discretionary and may be reversed only when that determination is "arbitrary, capricious or unreasonable."
Although no appellate tribunal in this state has directly addressed this issue, we are convinced by an analysis of the authorities below that a prison administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding. Impairment may be evidenced by inconsistencies in the SCO's statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be [a]ffected when there is sufficient corroborating evidence presented to negate any serious question of credibility. [Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005).]
In this case, the record does not disclose any inconsistencies with respect to the facts. In addition, there is sufficient corroborating evidence presented to negate any serious questions of credibility. All that is raised is the inmate's denial that the marijuana was his. No one denies that the marijuana was found in his locker. We do not find that the denial of the request for a polygraph impaired the fundamental fairness of this disciplinary proceeding.
Accordingly, because we conclude that the agency's decision is neither arbitrary nor capricious nor unreasonable given the facts presented and that the decision is supported by substantial credible evidence in the record as a whole, we affirm.
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