On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Sabatino and J. N. Harris.
Arlington King ("King"), a State prisoner, appeals a final agency decision of the Department of Corrections ("the Department") dated June 2, 2009. The final decision upheld discipline the Department imposed upon King for committing prohibited act *.009 (misuse or possession of electronic equipment not authorized for use or retention by an inmate), in violation of N.J.A.C. 10A:4-4.1(a).
The *.009 charge stemmed from an ongoing investigation performed by the Special Investigation Division ("SID"), which revealed that King improperly possessed a cell phone while he was housed at the New Jersey State Prison ("NJSP") in Trenton. The evidence included a transcript of several monitored phone conversations, in which King discussed bringing cell phones into the prison. The evidence also showed that a cell phone had been confiscated from another inmate and had been found to be registered on a cell phone contract in King's name. The proofs reflected that a compromised employee had smuggled two cell phones into the NJSP, one of which was delivered to King.
The disciplinary charges were served upon King, and he received the assistance of a counsel substitute at his ensuing hearing. King elected not to testify in his own behalf.
The hearing officer found King guilty of the *.009 violation. He recommended sanctions of fifteen days of detention, 365 days of administrative segregation, 365 days of lost commutation time, 365 days loss of telephone privileges, and permanent loss of contact visits.
King, who by this point had been transferred to East Jersey State Prison ("East Jersey"), appealed the hearing officer's determination. The guilty finding and sanctions were upheld by the administrator at East Jersey. King pursued a further appeal to this court. The Department moved to remand the matter because King's administrative appeal should have properly been considered by the administrator at NJSP, not East Jersey. In addition, a remand was sought because the SID's report, which the hearing officer had relied upon, should have been marked as a confidential exhibit in the adjudication. We granted the temporary remand, and a re-hearing was arranged. Meanwhile, King was transferred again, this time to South Woods State Prison.
The re-hearing was postponed seven times, in part because King sought to procure statements from several witnesses in his defense and requested to confront the Department's witnesses. King also asked for a polygraph examination. The polygraph request was denied by the NJSP administrator.
The re-hearing was completed in May 2009. Again, King was assisted by a counsel substitute. He submitted several written statements in rebuttal to the charges. After considering the proofs on re-hearing, the hearing officer found King guilty of the *.009 infraction. He imposed the same sanctions that had been meted out at the original hearing.
King filed a renewed administrative appeal. This time it was forwarded to the NJSP. An Assistant Superintendent at the NJSP upheld the hearing officer's disposition, in a final decision dated June 2, 2009. The Assistant Superintendent found that "[t]he evidence presented clearly substantiates the charge as written." Among other things, the Assistant Superintendent noted a confidential informant's report inculpating King in the phone-smuggling scheme, and documentation listing a cell phone in King's name. In upholding the sanctions, the Assistant Superintendent underscored the "serious security breach" posed by cell phones within State prisons.
In his appeal of the Department's final decision, King variously argues that (1) he received ineffective assistance from his counsel substitute; (2) he was denied due process because of the delays in completing the final re-hearing; (3) the hearing officer denied him a fair hearing; (4) he was wrongfully denied a polygraph, as well as adequate confrontation and witness statements; (5) the institutional appeal was not timely and properly decided; (6) the finding of guilt was not supported by substantial evidence; and (7) the hearing officer imposed illegal and excessive sanctions, including a loss of visitation privileges.
We have carefully considered each of appellant's contentions, and find that none of them have sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(D) and (E). Substantively, there is more than ample confidential and non-confidential proof in the record to furnish substantial evidence of King's guilt. McDonald v. Pinchak, 139 N.J. 188, 201 (1995). Procedurally, we are satisfied that King received at least the minimum level of due process necessary for prison disciplinary hearings. Avant v. Clifford, 67 N.J. 496, 528-33 (1975). The denial of a polygraph was justified, given the minimal role that credibility played in this case, which was heavily substantiated by documentary evidence. Ramirez v. ...