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Farra'd v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 15, 2008

QUDDOOS FARRA'D, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a final decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 18, 2008

Before Judges Winkelstein and Chambers.

Appellant, Quddoos Farra'd, is an inmate at East Jersey State Prison, serving a thirty-five-year prison term, with a seventeen-year, six-month period of parole ineligibility, for a number of offenses, including weapons offenses and aggravated assault. He appeals from a final administrative decision of the New Jersey Department of Corrections (DOC) finding him guilty of the following disciplinary infractions: *.005, threatening another with bodily harm or with any offense against his or her person or his or her property; .305, lying, providing a false statement to a staff member; and .402, being in an unauthorized area.

The DOC imposed the following sanctions: on the *.005 charge, 180 days loss of commutation credit, 180 days administrative segregation, and thirty days loss of recreation privileges; on the .305 charge, fifteen days detention, sixty days loss of commutation credit, and ninety days administrative segregation; and on the .402 charge, fifteen days detention, sixty days loss of commutation credit, and ninety days administrative segregation; all sanctions consecutive to each other.

On appeal, appellant raises the following issues:

POINT ONE

RESPONDENT ERRED IN DENIAL OF POLYGRAPH TEST

POINT TWO

DENIAL OF REQUESTED STATEMENT OF OFFICER BLIZZARD DENIED A FAIR AND IMPARTIAL HEARING

POINT THREE

DENIAL OF DUE PROCESS

POINT FOUR

CHANGING OF EVIDENTIARY HEARING OFFICER AND FAILURE TO START HEARING ANEW CREATED A[N] IMPARTIAL ADJUDICATION

POINT FIVE

DENIAL OF CROSS EXAMINATION DENIAL OF FAIR AND IMPARTIAL HEARING

[POINT] SIX

HEARING OFFICER FAILURE TO WRITE COMPLETE AND CORRECT ANSWERS ON CONFRONTATION ANSWER SHEET DENIED EXCULPATORY EVIDENCE

POINT SEVEN

FINDING OF GUILT ON DISCIPLINARY CHARGE WAS NOT BASED ON SUBSTANTIAL EVIDENCE

We find these arguments to be without merit and affirm.

The events that led to the charges occurred on November 15, 2007, when appellant reported to the prison clothing exchange. He told Senior Corrections Officer Blizzard, who was in charge of the clothing exchange, that his housing officer, Senior Corrections Officer Fresolone, gave him permission to go there without an appointment. Fresolone denied giving appellant permission, and appellant was returned to his housing unit.

When Fresolone questioned appellant about leaving his unit without an appointment, appellant allegedly responded: "I can take you," and "I could fuck you up." Fresolone reported the threat to Sergeant Thomas. Appellant was then handcuffed and placed in prehearing detention. The following day, the DOC initiated charges against him and served him with the charges.

Following appellant's request for a polygraph examination, the hearing, which was initially held on November 19, was adjourned, and a second hearing was held on November 28, 2007, when another hearing officer took over for the first hearing officer. After an additional postponement for the hearing officer to review all of the evidence, the hearing was concluded on November 30.

The hearing officer found appellant guilty of all of the charges. In arriving at his decision, the hearing officer relied upon the corrections officers' various written reports; Officer Fresolone's and Sergeant Thomas's confrontation questions and answers; as well as on Thomas's prehearing detention report and special report. The hearing officer further considered appellant's written statement and inmate H. Atum-Ra's witness statement. The agency upheld the hearing officer's decision.

Our review of that decision is limited. Only when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).

In a disciplinary proceeding while imprisoned, an inmate is not entitled to the full panoply of rights as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). In considering an inmate's request for a polygraph test, the agency is guided by N.J.A.C. 10A:3-7.1, which allows the administrator of the prison facility to request a polygraph examination, "when there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge." N.J.A.C. 10A:3-7.1(a)1. The 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." Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 23 (App. Div. 2005). The regulation "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." Id. at 23-24.

Here, the DOC did not abuse its discretion in denying appellant a polygraph examination. There was nothing fundamentally unfair about the proceeding. Appellant had the right to, and did, cross-examine the officer who accused appellant of threatening him. That same officer denied giving appellant permission to go to the clothing exchange. Simply because there was a dispute as to who was telling the truth does not require a polygraph examination. Ibid. Consequently, appellant's argument that he was entitled to one is without merit.

Next, appellant claims that he was denied a statement from Officer Blizzard, which in turn denied him a fair and impartial hearing. The record, however, does not contain any evidence that appellant requested a statement from Blizzard during the course of the proceedings. As the DOC points out, had appellant made the request, there was no reason why the hearing officer would not have asked Blizzard to provide a witness statement, just as he did with inmate Atum-Ra.

In his third point, appellant claims a lack of due process. He argues that excessive time passed from the date of the charges until the date of his final adjudication; and the agency violated its own forty-eight-hour hearing requirement. These arguments are without merit. Given the circumstances, appellant received a timely hearing. The postponement of his hearing was reasonable, and the short delays did not violate his due process rights. See Negron v. N.J. Dep't of Corrs., 220 N.J. Super. 425, 429 (App. Div. 1987). He was provided with a counsel substitute and given an opportunity to make a statement as to each charge. He called a witness whose written statement was provided to and considered by the hearing officer. His request for confrontation of two corrections officers was granted and the hearing officer prepared a written summary of the confrontation hearings. In sum, appellant's right to due process and fairness was not violated, and he received all of the procedural protections to which he was entitled. See Avant, supra, 67 N.J. at 522.

Next, appellant claims that having a second hearing officer take over for the first hearing officer during the course of the proceedings violated his due process rights. That argument is also without merit. The hearing officer who heard all of the relevant evidence made the determination of guilt. When the second hearing officer replaced the first on November 28, 2007, he conducted the confrontation hearing and postponed the remainder of the hearing to review all of the evidence in the record. To conclude that the change in hearing officers denied appellant's right to due process is nothing more than speculation.

In his fifth point, appellant claims that he was denied a fair and impartial hearing by being denied the right of cross-examination and "rebuttal." That argument is also without merit. He requested confrontation of Fresolone and Thomas. That request was granted, and the hearing officer obtained and reviewed confrontation questions and responses. In addition, the hearing officer noted in his summary that appellant, contrary to his arguments before this court, did not request rebuttal questions.

In his final point, appellant claims that the disciplinary charges were not proved. That argument is also without support in the record.

With regard to the threatening charge, *.005, the record fully supports the hearing officer's finding that appellant told Fresolone: "I can take you," and "I could fuck you up." The hearing officer believed the officer's version of what occurred rather than appellant's denial of the charges. That is the hearing officer's prerogative.

As to the remaining charges, appellant does not deny going to the clothing exchange; he simply argues that Fresolone gave him permission to do so. In a statement to Sergeant Parson, however, Fresolone contradicted that assertion by stating that appellant did not have permission to go to the clothing exchange. See Negron, supra, 220 N.J. Super. at 432 (although an adjudication may not be based solely on hearsay, in an administrative hearing, hearsay is permitted). Appellant had an opportunity to cross-examine Fresolone on this issue, and the officer answered his confrontation questions. Additionally, direct testimony that appellant was in an unauthorized area, the clothing exchange, was not necessary for appellant's conviction because appellant does not deny going to the clothing exchange, nor did he deny that he told Blizzard that he had permission to be there. Thus, Blizzard's testimony was not necessary.

Appellant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(D), (E).

Affirmed.

20081215

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