October 8, 2008
JESSE WARREN, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Graves and Grall.
Jesse Warren, a state prison inmate, appeals from final administrative decisions by the New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited acts *.009 ("misuse or possession of electronic equipment not authorized for use or retention by an inmate such as, but not limited to, a cellular telephone"), and .702 ("unauthorized contacts with the public"), in violation of N.J.A.C. 10A:4-4.1. We affirm.
The evidence presented during Warren's disciplinary hearing established that on August 11, 2007, a corrections officer found an anonymous note indicating that the inmates on tier "four-two-left, cell 66D and cell 27D take turns with a cell phone." As a result of the note, an investigation was conducted, and both cells were searched. A black Motorola cellular telephone, together with batteries and wires, were found in a light fixture in cell number 2027 assigned to inmates Harold Worthy and Gregory Jackson. In cell number 2066, assigned to inmates Warren and Elliot Kent, a set of batteries with wires was found on Warren's television stand and a similar set of batteries was found in Warren's radio. Both sets of batteries were consistent with the batteries found in cell 2027, which were used to charge the cellular telephone.
Warren was placed in prehearing detention, and he was charged with disciplinary infraction *.009. When Warren received a copy of the disciplinary report on August 12, 2007, he stated he was guilty of possessing "the illegal radio [and] radio battery pack," but he denied any knowledge or any use of a cellular telephone.
On August 13 and 15, 2007, Warren's disciplinary hearing was postponed because the hearing officer requested additional information from the Special Investigation Division (SID). During the SID investigation, Senior Investigator Stephen Manera, found a text message in the cellular telephone that read, "call me, Jesse." On August 16, 2007, Manera answered a call placed to the cellular telephone, and, when a female caller asked who she was speaking to, Manera answered "Jesse." The caller then stated, "This is not Jesse, I know Jesse's voice," and she hung up. Based on this additional information, Warren was charged with disciplinary infraction .702, unauthorized contacts with the public.
On August 17 and 20, 2007, Warren's hearing was postponed because the SID investigation was still pending. Two days later, on August 22, 2007, the hearing was again postponed to determine if there were any other inmates "on 42L [with] Jesse as a first name." Further investigation revealed there were no other inmates with the first name of Jesse assigned to tier 42L.
Both disciplinary hearings were completed on August 24, 2007. During his hearing and in his administrative appeal, Warren claimed he never used a cellular telephone, and he presented a written statement from inmate Worthy in which Worthy stated: "He never used the phone that I had and he never knew anything about the phone that I had ever. He had no knowledge of anything pertaining to me having a cell phone. The cell phone was mine and no one else ever used it."
The hearing officer's findings as to prohibited act *.009 were as follows:
[Inmate] pled not guilty but is found guilty as there is substantial evidence that the [inmate] did misuse electronic equipment, namely a cell phone found in cell 2027 in a light fixture. [Inmate] Warren claims no knowledge of the cell [phone] or [its] use, and says he only had the radio altered for extended use in the recreation yard. [Inmate] Worthy stated that he (Worthy) was the only one who used the phone or had any [knowledge] of it. These [statements] are not credible since the SID investigation by Manera indicates that there is a text message recorded on the phone which states "call me. -Jesse". That report also indicates that a call was received from a female requesting to speak to Jesse, and saying that she recognized Jesse's as opposed to the investigator's voice. Also, the anonymous snitch note indicated that this [inmate] was one of the [inmates] that had access to the phone. This anonymous [inmate] could not be questioned, but gained nothing from turning in the note. Additionally, the battery pack works the cell phone, and this configuration of batteries is not necessary to make the radio work. Because of this, this DHO finds that the [inmate] did make use of this cell phone, and this is prohibited by rule.
With regard to prohibited act .702, the hearing officer summarized the evidence as follows:
[Inmate] pled not guilty but is found guilty as there is substantial evidence that the [inmate] did have unauthorized contact with the public. While [inmate] denies this, the report from [Investigator] Manera indicates that messages were received from [sic] an unauthorized person stating "call me, Jesse" as well as a phone call was received wherein a female requested to speak to Jesse, and told the investigator that this wasn't Jesse and that she recognized Jesse's voice, and this wasn't his, indicating prior contact with this person. [Inmate's] defense that there must have been somebody impersonating him or using his name is without merit. For these reasons this DHO finds the [inmate] not credible.
On appeal to this court, Warren contends that his due process rights were violated because he did not receive a timely hearing and because he "was never asked if he wanted a polygraph examination." Pursuant to N.J.A.C. 10A:4-9.8(c), inmates confined in prehearing detention are to receive a hearing within three calendar days "unless there are exceptional circumstances, unavoidable delays or reasonable postponements." In this case, there were valid reasons for each of the postponements, the resulting delays were not unreasonable, and Warren received a fair hearing. Under these circumstances, there was no denial of due process. See N.J.A.C. 10A:4-9.9.
Warren's claim that he was denied due process because he was not offered a polygraph examination is equally without merit. Initially, as the DOC asserts, Warren never requested a polygraph test during his hearing or his administrative appeal. Therefore, this issue is not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). But even assuming a proper request was made, administration of a polygraph test was not warranted. "[A]n 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." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005). In this case, Warren's guilt was established by the text message in the cellular telephone ("call me, Jesse"), the female caller who stated she knew she was not talking to Jesse because she knew Jesse's voice, and the physical evidence found in Warren's prison cell. Thus, there was no "serious question of credibility" warranting a polygraph.
Based on our review of the record, we conclude Warren received all applicable due process protections, see Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995), and the DOC's decisions are supported by substantial credible evidence. See Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980).
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