On appeal from a Final Determination of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2008
Before Judges S. L. Reisner and Gilroy.
Appellant Robert Coar, an inmate currently incarcerated at South Woods State Prison, Bridgeton, appeals from the final decision of the New Jersey Department of Corrections (DOC), finding him guilty of committing prohibited act *.202, "possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife, or unauthorized tool." N.J.A.C. 10A:4-4.1(a). Coar was sanctioned fifteen days of detention, with credit for time served; ninety days loss of commutation time; and 120 days of administrative segregation, suspended for sixty days.
On appeal, Coar argues that: 1) the DOC failed to prove the elements of the prohibited act; 2) he was denied due process because the DOC failed to properly investigate the charge by not submitting the razor blade to an approved laboratory for fingerprint analysis; and 3) he was denied due process because he was not permitted to submit to a polygraph test, although he requested one, and resolution of the case depended on a determination of credibility. We affirm.
On May 8, 2007, during a routine search of Coar's cell, Senior Corrections Officer (SCO) Fisher found a razor blade in Coar's secured locker. The razor blade was wrapped in paper, in such a way as to create a paper handle. The weapon was confiscated and placed in the prison's evidence locker. After Coar was placed in pre-hearing detention, he was charged with committing the prohibited act.
On May 9, 2007, Coar was duly served with notice of the charge and pled not guilty, claiming that he had no knowledge of the razor blade or how it came to be found in his locker. Investigating Corrections Officer Sergeant Orsini noted that Coar made comments about requesting a polygraph test, fingerprinting, and a confrontation hearing.
At the hearing, Coar was granted assistance of counsel substitute, and pled not guilty. Coar again requested that he be allowed to submit to a polygraph test, but was denied. Coar was offered the opportunity to call witnesses on his own behalf, but declined. However, Coar requested, and was granted, the opportunity to confront and cross-examine SCO Fisher. Following the hearing officer's review of the various reports offered by the DOC, the hearing officer found Coar guilty of the prohibited act and recommended sanctions of fifteen days of detention, with credit for time served; 180 days loss of commutation time; and 180 days of administrative segregation. Coar administratively appealed. On May 14, 2007, Associate Administrator Bartkowski upheld the guilty determination, but modified the sanctions to fifteen days of detention, with credit for time served; ninety days loss of commutation time; and 120 days of administrative segregation, suspended for sixty days.
As an appellate tribunal, our ability to review a final decision of an administrative agency is limited. We will disturb an agency decision only if the action is arbitrary, capricious, or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
An adjudication of guilt of an infraction must be supported by substantial evidence. Jacobs v. Stephens, 139 N.J. 212, 222-24 (1995); Avant v. Clifford, 67 N.J. 496, 530 (1975). The adjudication procedure must also assure that the inmate is afforded the procedural due process that is his due. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs, supra, 139 N.J. at 222; Avant, supra, 67 N.J. at 525-33.
We have considered each of appellant's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comment.
Appellant argues that the adjudication and sanctions should be reversed because his request for administration of a polygraph test, pursuant to N.J.A.C. 10A:3-7.1(a), was denied. We disagree. A prison inmate's request for a polygraph examination does not constitute sufficient cause for granting the application. N.J.A.C. 10A:3-7.1(c); Johnson v. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997).
As we held in Ramirez v. Dept. of Corr., 382 N.J. Super. 18 (App. Div. 2005), a prison administrator's determination not to give a polygraph examination is discretionary in nature, and can be reversed only upon a finding that the determination was arbitrary, capricious or unreasonable. Id. at 24. We further held that the exercise of 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 ...