March 25, 2009
JAMAR HILL, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Determination of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2009
Before Judges Baxter and King.
This is an appeal from a February 26, 2008 final agency decision of the New Jersey Department of Corrections (DOC), in which DOC imposed disciplinary sanctions upon East Jersey State Prison inmate, Jamar Hill, pursuant to N.J.A.C. 10A:4-4.1(a). The hearing officer found Hill guilty of committing prohibited act *.005, threatening another with bodily harm. After finding Hill guilty of the *.005 charge, the hearing officer recommended a sanction of fifteen days detention, with credit for the time Hill had already served in pre-hearing detention; and a loss of 150 days of commutation time. Hill appealed the hearing officer's unfavorable decision to the prison administrator, who on February 26, 2008, affirmed the guilty finding and the sanction that had been imposed by the hearing officer. We affirm.
Hill was accused of making threatening remarks to Senior Corrections Officer Ware, who alleged that when Hill walked past her on February 12, 2008, he stated, "If you wasn't [sic] behind that gate, I would f--k you up." Senior Corrections Officer Muse witnessed the incident, overheard Hill's threat and also filed a report. The hearing on the charge was postponed twice, once because of Hill's request for confrontation of witnesses and again to consider Hill's request for a polygraph examination. On February 20, 2008, a prison administrator denied Hill's request for the polygraph and on February 25, 2008, the matter proceeded to a hearing, with counsel substitute assigned.
At the February 25, 2008 hearing, Hill presented a witness who testified he did not hear Hill threaten Ware. The hearing officer considered the written reports submitted by Ware and Muse, the testimony of Hill's witness and the arguments presented by Hill's counsel substitute. After doing so, the hearing officer adjudicated Hill guilty of the charge in question.
On appeal, Hill argues that the final agency decision should be reversed because: 1) the finding of guilt is not supported by substantial and credible evidence in the record; 2) he was unfairly denied the opportunity to undergo a polygraph examination; and 3) the prison administrator upheld the finding of guilt a day before the hearing was actually conducted, thereby demonstrating a "pre-determination of guilt."
We turn first to Hill's claim that the evidence did not support the charge of threatening a corrections officer. The contemporaneous reports submitted by Ware and Muse both attested to the remark Hill made to Ware. Hill's witness merely stated that he heard no threat. Hill's counsel substitute did not deny that Hill made the remark in question. Instead, he merely argued that "[Ware] continues to write people up for .005. If there is a pattern, we ask for leniency. He has a short time and good disciplinary [record]."
Our scope of review is a narrow one, and Hill's contentions are reviewed in accordance with that standard. We must affirm unless the agency's decision was arbitrary, unreasonable, unsupported by credible evidence in the record or contrary to law. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Here, contrary to Hill's contentions on appeal, substantial and credible evidence in the record amply supports DOC's finding that Hill threatened Senior Corrections Officer Ware.
We decline to consider Hill's contention that Ware's accusation was made in retaliation for a complaint Hill filed against her a week earlier. Although Hill raised this claim before the hearing officer, he failed to pursue it in his appeal to the prison administrator. Absent exceptions not relevant here, we will not consider on appeal matters that were not presented to the tribunal from which the appeal emanates. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
We turn next to Hill's claim that the denial of his request for a polygraph so undermined the reliability of the proceeding as to warrant a new hearing. As DOC correctly argues, inmates are not automatically entitled to a polygraph examination simply upon request. N.J.A.C. 10A:3-7.1. Instead, the ordering of a polygraph is solely within the discretion of the Administrator or his or her designee. Ibid. As we observed in Ramirez v. Department of Corrections:
[A] prison administrator's 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 [Senior Corrections Officer'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 inmate's behalf. [382 N.J. Super. 18, 24 (App. Div. 2005).]
Here, when he denied Hill's request for a polygraph, Administrator Parrish stated that he was able to determine credibility from his review of the materials presented, and a polygraph examination would add nothing to the factfinding process. The written statements of Ware and Muse were entirely consistent and, other than the testimony of Hill's witness, which Parrish did not find credible, the testimony was consistent. Under those circumstances, we perceive no abuse of discretion in Parrish's decision to deny Hill's polygraph request. See Ibid.
Last, we consider Hill's argument that the Associate Administrator, Evelyn Davis, upheld the hearing officer's determination of guilt on February 24, 2008, a day prior to the determination of his guilt at the February 25, 2008 hearing before the hearing officer. DOC maintains that "Davis'[s] handwriting is responsible for this assertion. Although Ms. Davis'[s] date appears to be February 24, 2008, . . . the 'four' is actually a 'six.'"
Our own review of the document demonstrates that the numeral in question is oddly-shaped and could as easily be a four as a six. However, the document states that the hearing was conducted on February 25, 2008, and the document was delivered to Hill on February 26, 2008. Under those circumstances, we have been presented with no meritorious basis upon which to conclude that Davis essentially falsified the findings she was responsible for making by deciding the appeal in advance. Moreover, Davis could not have known that Hill would administratively appeal the charge a day before the hearing was conducted and the charge would subsequently be upheld. Consequently, we reject this claim as meritless.
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