July 10, 2008
ANDRE VILKINGS, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 10, 2008
Before Judges Lintner and Parrillo.
This is a prison disciplinary appeal. Andre Vilkings, an inmate confined at Northern State Prison, appeals a Department of Corrections' (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.203, possession of a prohibited substance, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
On June 26, 2007, while Vilkings was at the head of a line waiting to enter the "strip-frisk" room, Sergeant Holliday observed him drop a small package suspected of containing a controlled dangerous substance. Corrections Officer Wilson also witnessed Vilkings drop the plastic wrapped package, which were found to contain five suspect cigarettes. The five hand-rolled cigarettes tested positive for marijuana (THC).
Charges were served upon Vilkings on June 27, 2007, and Vilkings pled not guilty to the infraction. A hearing scheduled for June 29, 2007 was postponed because the lab results of the five cigarettes had not yet been received. The next hearing date of July 3, 2007 was also postponed to ascertain the existence of a videotape of the incident, but none was uncovered. A hearing on the charge was conducted on July 6, 2007, in which Vilkings was provided the assistance of a counsel substitute. At the hearing, Vilkings did not request any witness investigation and declined the opportunity to call witnesses in his defense or confront adverse witnesses.
In adjudicating Vilkings guilty of the *.203 charge, the hearing officer concluded:
Sgt. Holliday reports that while being strip [frisked] outside the gym [Vilkings] was found [to] be in possession of a [Saran] wrapped bundle. Subsequently, the contents of the bundle tested positive for marijuana. Inmate pleads not guilty. "[S]tated it wasn't his. He just came from [R]ahway." A-2, A-3, [A]-4, [A]-5 used in support of charge and relied on.
Vilkings received the following sanctions: fifteen days of detention, with credit for time served; 365 days of Administrative Segregation; 365 days loss of commutation time; and 30 days CORP C/S to Detention and permanent loss of contact visits. On administrative appeal, the guilty finding and imposition of sanctions were affirmed.
On appeal, Vilkings claims he was denied due process because he did not receive a timely hearing nor a videotape of the incident, and was not allowed to take a polygraph test or to provide a urine sample. We are satisfied that the final agency decision should be affirmed as appellant was afforded all the process due, and the finding of guilt is supported by substantial credible evidence.
Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).
Furthermore, it is not our function to substitute our independent judgment for that of an administrative body, . . . where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein. [Ibid. (citations omitted).]
In this case, the initial determination of the charge was made by a hearing officer in a disciplinary proceeding largely on credibility grounds. We find no basis to disturb the result, as we are satisfied that both the hearing officer's decision and the Department's ultimate determination are sufficiently grounded on credible evidence and should be affirmed. See Henry, supra, 81 N.J. at 579-80.
We are also satisfied that the administrative adjudication comported with procedural due process. See Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2975, 41 L.Ed. 2d 935, 951-52 (1974); Avant v. Clifford, 67 N.J. 496, 522 (1975). See also Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995). Vilkings received timely notice of the charge. A Department of Corrections sergeant thoroughly investigated the matter within twenty-four hours of Vilkings being notified of the charge. Vilkings was afforded an impartial hearing at which time he was assisted by counsel substitute and was free to confront or cross-examine adverse witnesses, which he chose not to do. Vilkings was permitted to put on a defense and both he and counsel substitute made statements on his behalf.
Vilkings' present complaints on appeal were not raised below and are therefore precluded from review now. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, they are all without merit. As for the timeliness of his hearing, it was postponed twice for good reason: the first time in order to receive the lab results, and the second to inquire if a videotape existed. As noted, the investigation determined that no videotape existed for Vilkings to review and therefore no due process right was violated by its non-production. Similarly as to Vilkings' claim of a right to provide a urine sample, such would not have proved his innocence of the possession charge, for which there was substantial credible evidence.
As to his final complaint, there is no proof in the record that Vilkings ever requested a polygraph test. But even if one were made, there is no entitlement to such testing. In this regard, N.J.A.C. 10A:3-7.1(a) provides that "[a] polygraph examination may be requested by the Administrator" of the prison:
"1. When there are issues of credibility" regarding serious incidents or allegations which may result in a disciplinary charge; "or 2. As part of a reinvestigation of a" disciplinary charge, when the Administrator . . . is presented with new evidence or finds serious issues of credibility.
However, "'[a]n inmate's [mere] request for a polygraph examination shall not be sufficient cause[, in and of itself,] for granting the request.'" Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997) (quoting N.J.A.C. 10A:3-7.1(c)). Moreover, N.J.A.C. 10A:3-7.1 "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." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). Rather, "an inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Id. at 20. As to fundamental fairness, the Ramirez court held that: Impairment may be evidenced by inconsistencies in the [officers'] 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 [affected] when there is sufficient corroborating evidence presented to negate any serious question of credibility. [Id. at 24.]
Here, there was no impairment of fundamental fairness in the failure to administer a polygraph test. There were two eyewitnesses, who had no reason to falsify a charge, and each gave consistent accounts of the incident. In contrast, Vilkings offered no witnesses to corroborate his version of events. Therefore, we are satisfied that in adjudicating the charge, there was no issue of credibility that could not be determined on the record amassed at the hearing and the lack of polygraph testing in this case did not compromise the fundamental fairness of the disciplinary process.
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