On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Ashrafi.
Inmate Dennis Galan appeals disciplinary sanctions imposed upon him for possession of a cell phone while in custody at Northern State Prison. We affirm.
On May 21, 2008, an officer conducting a routine search found a cell phone inside a green and white cooler near the area of Galan's bed. Written on the cooler was Galan's name. The officer immediately reported the discovery to his supervising sergeant. The next day, Galan received written notice of an administrative charge for possession of an unauthorized electronic device. Disciplinary proceedings before a hearing officer began on May 23, 2008. Galan pleaded not guilty and requested the assistance of counsel substitute and the right to confront the officer who had found the cell phone. The hearing was postponed four times during the next week until that officer became available for questioning.
On June 4, 2008, the hearing officer reviewed the report of the officer regarding discovery of the cell phone, black and white photocopy pictures of the cooler and cell phone, and the reports of other officers regarding notification of Galan about the charge and his transfer to detention. Galan and his counsel substitute were given an opportunity to testify or call witnesses. Galan did not call any witnesses, but he denied that he was guilty, and his counsel substitute stated that Galan's cooler was blue and white, not green and white. The officer who found the cell phone was examined by the hearing officer through written questions provided by Galan.
The hearing officer indicated in writing that he found the officer's answers credible and that he relied on the reports and other listed evidence in finding Galan guilty. He recommended the following sanctions: fifteen days detention with credit for time served, and 365 days of administrative segregation, loss of commutation credits, and loss of telephone privileges, stating further that the charge of possession of a cell phone was a serious, security related infraction.
Galan filed an administrative appeal, submitting a written argument that included factual challenges to the credibility of the evidence against him and requesting for the first time that the logs of calls from the cell phone be examined. Several days later, the Assistant Superintendent of the prison issued a written decision upholding the finding of guilt and imposing the recommended sanctions. Galan filed a notice of appeal to this court.
Galan contends that his due process rights were violated because polygraph examinations of him and the accusing officer were not ordered, he was not permitted to cross-examine the officer, and the documents provided by the prison are illegible. We have reviewed the briefs and record of the disciplinary proceedings and conclude that these contentions have no merit.
In Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 2978-79, 41 L.Ed. 2d 935, 955-56 (1974), the United States Supreme Court held that prison inmates must have the benefit of certain minimal due process protections when administrative sanctions are imposed for violation of prison rules. These protections include advance written notice of the charge, a written statement of the evidence relied upon and the reasons for the sanctions imposed, and a limited right to call witnesses and present documentary evidence. Ibid. Federal constitutional rights of prisoners do not include the right to counsel or to cross-examine witnesses. Id. at 567-70, 94 S.Ct. at 2980-81, 41 L.Ed. 2d at 957-58.
In Avant v. Clifford, 67 N.J. 496, 523-24 (1975), the Supreme Court of New Jersey noted that a prison disciplinary proceeding is not a criminal prosecution and does not require the same due process protections as in criminal courts. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed. 2d 484, 499 (1972). Nevertheless, the Court expanded the due process rights of New Jersey's inmates beyond the minimal federal constitutional rights required by Wolff. The Court held that due process rights are adequately protected by requiring:
(1) written notice of the charges at least twenty-four hours before the hearing, (2) an impartial tribunal, which may be a superior officer from the central prison staff, (3) a limited right of the inmate to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses in appropriate cases, (5) a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) a limited right to the assistance of counsel substitute. Avant v. Clifford, supra, 67 N.J. at 525-39. Disciplinary action may be taken where the inmate's involvement in the infraction is supported by "substantial evidence." Id. at 530.
A polygraph examination is not required simply because the inmate requests one. See Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 20, 23 (App. Div. 2005); Johnson v. N.J. Dept. of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997); N.J.A.C. 10A:3-7.1(c). Even if Galan had requested a polygraph at the time of the hearing, which he did not, denial of the request would not have been arbitrary, ...