On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 28, 2010
Before Judges Axelrad and Espinosa.
Chaka Kwanzaa appeals from a final determination of the Department of Corrections (DOC) that he violated *.003, assaulting any person with a weapon, N.J.A.C. 10A:4-4.1.*fn1 The hearing officer imposed 15 days detention, 365 days administrative segregation, 365 days loss of commutation time, and 30 days loss of recreation privileges. Following an administrative appeal, the associate administrator upheld the decision of the hearing officer. Appellant then filed an appeal of the agency's decision.
Appellant argues: (1) the hearing officer was not impartial; (2) the hearing officer delayed the hearing with arbitrary postponements and violated appellant's substantial due process rights by failing to provide a hearing within seventy-two hours; (3) the hearing officer improperly denied appellant's request to marshal the facts and to obtain or present certain evidence, as well as his request for a polygraph; (4) he was denied his right to confront adverse witnesses; and (5) the hearing officer failed to articulate his findings of fact. We reject appellant's arguments and affirm.
The charges arose from an incident on January 7, 2009, between appellant and Bayside State Prison Sergeant Worlock about property that appellant claimed had been lost or damaged at the prison. The evidence presented was that when Sgt. Worlock disputed the claim, appellant became loud and belligerent and threw his cane at the officer, striking him in the arm. Senior Corrections Officers Romano and Veach, who were present, restrained and cuffed appellant. Appellant denied the act, challenged the credibility of the officers, and claimed they fabricated the incident in retaliation for his submission of remedy forms and past and present legal actions.
Appellant was immediately transferred to Southern State Correctional Facility after the incident and was served with notice of the charge the next day. The hearing was originally scheduled for January 9, 2009, but was postponed ten times for a variety of reasons, including the detention unit being closed for repair, the scheduling of the confrontation hearings with the three officers as requested by appellant, the processing of appellant's polygraph request, and the obtaining and viewing of the videotape as requested by appellant. Appellant was provided with the assistance of counsel substitute, although he indicated he wanted to represent himself.
The testimony of the officers took place on January 15, and the hearing concluded on January 27, 2009. In his detailed decision the hearing officer summarized the officers' testimony and appellant's denial of the incident and assertion of retaliation and due process violations. The hearing officer made express credibility findings, noting the reports of the officers were consistent with one another and the charge written by Sgt. Worlock. He further found that each officer who was independently questioned answered all the questions consistent with one another, "without hesitation and, with noted certainty." The hearing officer also found that appellant's representation of the videotape as showing him leaving Sgt. Worlock's office without being handcuffed was not accurate. Based on his analysis of the testimony and evidence, the hearing officer found appellant's defense not to be credible, and expressly found no evidence of staff retaliation or misconduct.
We are satisfied appellant was afforded the procedural due process required by Avant v. Clifford, 67 N.J. 496 (1975). The hearing officer was a member of the DOC central office staff and would therefore appear to qualify as an impartial tribunal. Id. at 525-28. Appellant's allegations that the hearing officer was biased because appellant filed a lawsuit against him more than a decade ago is not supported by any evidence, merely a cite to a caption, Kwanzaa v. Morton, No. 98-2709 (AET). Appellant was provided written notice of the charges at least twenty-four hours prior to the initial hearing, Avant, supra, 67 N.J. at 525, and the adjournments were reasonable under the circumstances and did not unduly delay completion of the hearing.
Appellant was not hampered in his ability to obtain and present relevant evidence. Appellant's asserted confrontation violations, namely that the officers were not sequestered, were questioned behind a big, steel door that impaired his ability to hear their responses, and were not asked critical questions is not supported by the record. According to the hearing officer's certification, the confrontation hearings were conducted in the detention unit where appellant was incarcerated and the hearing officer and sequestered officer who was being cross-examined were in the same room with appellant, who was situated in a holding area surrounded by mesh fencing. Thus, neither the physical makeup of the room nor the location of the parties in the room would have prevented appellant from hearing the questions or answers. Moreover, at no time did appellant or his counsel substitute inform the hearing officer of a problem. Appellant correctly states that the hearing officer did not ask all of the confrontation questions he submitted. That is not a requirement, however, as the hearing officer has the discretion, here properly exercised, to delete questions that are not relevant or that request information about the DOC's internal operating procedures or policies.
We also reject appellant's argument that he was denied due process because he did not receive the polygraph examination he requested. An inmate's mere request for polygraph examination shall not be sufficient cause, in and of itself, for granting the request. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). In addition, a polygraph is clearly not required on every occasion that an inmate denies the disciplinary charge against him, but rather the request should be granted "where there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20, 23-24 (App. Div. 2005). Impairment of fundamental fairness may be evidenced by inconsistencies in the officers' statements or a statement by another inmate on the inmate's behalf but "will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Id. at 24.
In appellant's case, the record does not show any issues of credibility that could not have been determined at a disciplinary hearing. Appellant requested and received confrontation of the three officers. Thus, the absence of a polygraph did not compromise the fundamental fairness of the disciplinary process.
Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse such 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 an 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). Here, in determining guilt, the hearing officer relied on reports from the officers who were present at the scene as well as appellant's denial and argument of retaliation. Based on this evidence, the hearing officer made credibility assessments, which he clearly articulated, and set forth detailed findings of fact ...