April 27, 2009
ROBIN JACKSON, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Lihotz and Messano.
Inmate Robin Jackson appeals from the final agency action of the Department of Corrections (DOC) finding him guilty of committing prohibited act *.803/*.009, attempting "the misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral," N.J.A.C. 10A:4-4.1(a), and imposing sanctions. On appeal, Jackson contends the decision was "not supported by reliable credible evidence in the record." He also claims he was denied "Due Process," because his request for a polygraph examination was denied.
We have considered the arguments Jackson raises in light of the record and applicable legal standards. We affirm.
On April 15, 2008, while handing Jackson his mail, senior corrections officer W. Gould observed a T-Mobil cell phone SIM card fall out of the envelope. Gould seized the phone card, the envelope and its contents. Later that day, Jackson executed an "Inmate Receipt Contraband Report," acknowledging the items seized were his. He was served with the appropriate notice of disciplinary action.
The initial date for the hearing was postponed because Jackson requested a polygraph examination and the taking of witness statements. The administrator of the facility denied his request for a polygraph, and the hearing took place on April 24, 2008. Jackson was represented by counsel substitute, and he submitted a written statement of his version of the events.
First, he alleged that he was not present when the SIM card was discovered, but was told about it by Gould. Second, he contended that he only signed the contraband receipt to "receive [the] mail and pictures that w[ere] in the letter."
Noting that the entire "wing" where he was housed had been searched, and no cell phone was located, Jackson argued that he had no use for the SIM card and denied knowing about it. In addition to his own statement, Jackson furnished the names of several inmates who provided witness' statements to the hearing officer. Though they lacked specific knowledge of the events at hand, they generally claimed that Jackson had no cell phone or access to one.
The hearing officer concluded that the SIM card was discovered when officer Gould was handing Jackson his mail, and that the sender of the envelope was a former inmate at the facility from 2005-07. He noted that Jackson's witnesses "d[id] not have knowledge of the incident[.]" The hearing officer adjudicated Jackson guilty of the infraction, and imposed sanctions. On administrative appeal, the guilty finding was affirmed, but the sanctions were modified and reduced.
Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In Re Pub. Serv. Elec. & Gas co., 35 N.J. 358, 376 (1961)(quotations and citations omitted) DOC's regulations require any "finding of guilt at a disciplinary hearing" be "based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a).
Here, the finding was supported by substantial, credible evidence. Gould testified that the SIM card, admittedly contraband under the regulation, fell out of an envelope, addressed to Jackson and including his inmate number, when he handed it to him. The apparent sender of the mail was a former inmate at the facility. None of Jackson's witnesses had any first hand knowledge of the events, admitting that they were not present at the time. Jackson's claim that he only executed the contraband receipt form because he wanted the other items in the envelope and did not want the authorities to retain them is of little moment. By claiming these other items, Jackson was inferentially demonstrating that the contents of the envelope belonged to him. The hearing officer was certainly in a position to conclude that Jackson's claim as to the other items in the envelope implied his ownership over all the items it contained. To the extent he believed officer Gould's testimony, the circumstantial evidence that Jackson intended to possess the SIM card was substantial and compelling.
As to Jackson's contention that his request for a polygraph examination was unfairly denied, we reject it. We have said, "[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, supra, 382 N.J. Super. at 20. Given the extent of the testimony we have referenced above, we do not believe this case presented a "serious question of credibility" and Jackson's right to a fundamentally fair hearing was not compromised by the denial of his polygraph request.
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