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Horn v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 28, 2008

ALPHA HORN, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2008

Before Judges Parker and Gilroy.

Petitioner Alpha Horn appeals from a final decision by the Department of Corrections (DOC) affirming a hearing officer's decision finding petitioner guilty of *.004, fighting with another person, in violation of N.J.A.C. 10A:4-4.1(a).

This charge arose out of an incident that occurred on August 28, 2007, when a senior corrections officer (SCO) observed petitioner and another inmate, Anthony Anderson, engaged in a fight. The SCO ordered the men to stop fighting, which they did. The fight was also observed by other inmates.

Petitioner was served with the charge on August 29, 2007, after which an investigation was conducted. Petitioner pled not guilty and claimed self-defense. He did not name any witnesses but did request counsel substitute.

On August 30, 2007, the hearing was conducted and petitioner was represented by counsel substitute. The hearing officer reviewed the various reports submitted and heard petitioner's statement:

I have [gang minimum custody] status. I have never had problems. I would not mess it up. He hit me. He was losing. I did not throw . . . punches. My eyes are bad. He has no injuries. We were in the middle of the dayroom."

His counsel substitute indicated that it was self-defense and that petitioner "never had a chance. It happened fast. He was not the aggressor." Petitioner was offered the opportunity to cross-examine adverse witnesses but he did not do so.

After considering all of the evidence, the hearing officer found petitioner guilty of the *.004 charge and recommended fifteen days detention with credit for time served, 180 days loss of commutation time and 180 days administrative segregation.

In this appeal, petitioner argues:

POINT ONE

POLYGRAPH EXAMINATION WAS DULY REQUESTED AND WAS REFUSED, THIS WAS A VIOLATION "DUE PROCESS". (NOT RAISED BELOW)

POINT TWO

I RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, A DENIAL OF MY DUE PROCESS RIGHTS BY MY SUBSTITUTE COUNSEL. (NOT RAISED BELOW)

POINT THREE

I HAVE A RIGHT TO DEFEND MYSELF AGAINST SOMEONE'S HOSTILE ACTS.

We have carefully considered petitioner's arguments in light of the applicable law and we find that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comment.

Petitioner was provided with all of the due process rights to which he was entitled under Avant v. Clifford, 67 N.J. 496, 522 (1975). Petitioner claims that counsel substitute failed to effectively argue his cause. Petitioner, however, also had the opportunity to argue his cause before the hearing officer, to present witnesses and to cross-examine other witnesses.

Moreover, petitioner is not entitled to a polygraph examination on an inmate disciplinary charge. The only reference to a polygraph in the administrative code is in N.J.A.C. 10A:3-7.1(a), which provides for an administrator to request a polygraph under certain circumstances, such as where there are issues of credibility regarding serious incidents. Otherwise, an inmate has no entitlement to a polygraph examination. Johnson v. New Jersey Dep't of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997).

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . . '" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We do not find the DOC's decision here "arbitrary, capricious or unreasonable." Moreover, the decision is supported by substantive credible evidence in the record. R. 2:11-3(e)(1)(D).

Affirmed.

20080728

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