July 19, 2010
LOUIS O'NEAL, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2010
Before Judges Miniman and Waugh.
Defendant Louis O'Neal appeals from a final agency decision of the Department of Corrections (DOC) imposing disciplinary sanctions for committing certain prohibited acts in violation of N.J.A.C. 10A:4-4.1(a). We affirm.
We discern the following facts and procedural history from the record.
O'Neal is currently an inmate at the New Jersey State Prison in Trenton. However, at the time of the events underlying the discipline that is the subject of this appeal, O'Neal was incarcerated at South Woods State Prison (SWSP) in Bridgeton. He is serving a mandatory minimum term of two years and six months for one count of armed burglary, a maximum term of thirty years for one count of murder, and a maximum term of life in prison for another count of murder.
On April 1, 2009, at approximately 2:20 p.m. Senior Corrections Officer C. Tripp was pat frisking inmates who were leaving the clothing shop at SWSP. According to Tripp, the inmates were talking very loudly in the hallway, so he instructed them to stop talking. Tripp charged that O'Neal, in a loud voice, answered that he could talk if he wanted to and that he had forty to life so he would do what he wanted to do.
At that point, according to Tripp, he asked Corrections Officer J.L. Murray to escort O'Neal from the back of the line to the holding cell. O'Neal was charged with striking Tripp in the upper chest area as Murray was escorting him past Tripp. He was also charged with continuing to remain combative by refusing to be placed in cuffs and grabbing Tripp in the genital area after Tripp "took him to the floor." A team of corrections officers escorted O'Neal to detention.
Because of the incident, the pat frisk movement was terminated and all other incoming movements were delayed. As a result of the incident, three corrections officers were sent to the emergency room for medical attention.
O'Neal was charged with committing prohibited act *.002, "assaulting any person," and prohibited act *.306, "conduct which disrupts or interferes with the security or orderly running of the correctional facility." N.J.A.C. 10A:4-4.1(a).
On April 2, 2009, at 3:45 p.m., Sergeant C. Ennals served both charges on O'Neal. Ennals, who had conducted the investigation, referred the charges to a hearing officer for further action. O'Neal pled not guilty to both charges. His request for the assistance of a counsel substitute was granted. His request for a polygraph test was denied because the issue of credibility was deferred to the hearing.
The hearing began on April 3, 2009, but was postponed because O'Neal requested confrontation with Officers Tripp and Murray. The hearing was again postponed on April 6, April 9, April 11, and April 13. On April 17, Murray testified through a teleconference. Tripp testified on April 20 in the same manner.
O'Neal's request for confrontation of additional corrections officers was denied as untimely, because it was made only after Tripp and Moore had testified.
In his written adjudication of the charges, Hearing Officer Sal Maniscalco relied on the reports and testimony of Tripp and Murray, which he found to be credible. With regard to the *.002 charge, Maniscalco found O'Neal guilty of assaulting Tripp and sanctioned O'Neal with fifteen days detention, with credit for time served, 365 days of administrative segregation, and 365 days of loss of commutation credits.
With regard to the *.306 charge, Maniscalco found O'Neal guilty of disrupting the facility's normal operations because his actions caused a "code" to be called and interrupted the movement of inmates to and from the shop. O'Neal was sanctioned with fifteen days detention, with credit for time served, 180 days of administrative segregation, and 180 days of loss of commutation credits.
O'Neal requested and received a ten-day extension to review the record and file his appeal. O'Neal filed an administrative appeal of the hearing officer's decision on April 24. On May 4, Administrator Karen Balicki upheld the decision, noting that O'Neal had the opportunity to call witnesses of his own, but chose not to do so, and that he had confrontation with two corrections officers.
This appeal followed.
On appeal, O'Neal raises the following issues:
POINT I: THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ALSO LACKS THE NECESSARY ELEMENTS TO SUSTAIN GUILT BASED UPON SUBSTANTIAL CREDIBLE & RELIABLE EVIDENCE IN THE RECORD AS A WHOLE.
POINT II: THE DENIAL OF A REQUEST FOR A POLYGRAPH EXAMINATION OF DEFENDANT BY THE ADMINISTRATOR COMPROMISED THE FUNDAMENTAL FAIRNESS OF THE DISCIPLINARY PROCESS.
Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).
We have considered each of O'Neal's arguments in light of the record and applicable law. We conclude his arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). The DOC must facilitate an informal hearing to ensure that disciplinary findings are based upon verified facts and the use of discretion is informed by accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that DOC's regulations for disciplinary hearings "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.
Our review of the record leads us to conclude that the agency decision was supported by substantial evidence and that its procedures comported with the appropriate level of due process. Avant, supra, 67 N.J. at 530; N.J.A.C. 10A:4-9.15(a). Substantial evidence is "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) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).
The hearing officer's decision was based upon his evaluation of the credible testimony of two corrections officers. That there may have been some inconsistencies in their testimony, and between their testimony and their reports, was a matter for the hearing officer's determination. We also see no abuse of discretion in the denial of O'Neal's request for confrontation of additional corrections officers at the close of the hearing. Given our standard of review, we see no basis to overturn either decision.
We find no error in the agency's determination to deny O'Neal's request for a polygraph examination. N.J.A.C. 10A:3-7.1 provides:
(a) A polygraph examination may be requested by the administrator or designee:
1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or
2. As part of a reinvestigation of a disciplinary charge, when the Administrator or designee is presented with new evidence or finds serious issues of credibility.
"The code regulation's principal impetus is as an investigative tool of the administrator when serious disciplinary infractions are alleged against an inmate as opposed to an affirmative right granted to the inmate himself." Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 23 (App. Div. 2005). "[A]n inmate does not have an unqualified right to a polygraph test." Ibid.; Johnson v. N.J. Dep't of Corrs., 298 N.J. Super. 79, 83 (App. Div. 1997). Instead, "an 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. We explained such
[i]mpairment 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. Conversely, fundamental fairness will not be [a]ffected when there is sufficient corroborating evidence presented to negate any serious question of credibility. [Id. at 24.]
Having reviewed the record, we cannot conclude that the prison administrator's decision to deny O'Neal's polygraph request "compromise[d] the fundamental fairness of the disciplinary process." O'Neal chose not to call witnesses to corroborate his version of the events and, despite some inconsistencies, the testimony of the two corrections officers clearly supported the charges.
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