July 21, 2010
RAHJIV SMITH, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 9, 2010
Before Judge Grall and LeWinn.
Appellant appeals from the final agency decision of the Department of Corrections upholding the hearing officer's decision finding him guilty of *.004, fighting with another inmate, and *.306, disruptive conduct, both in violation of N.J.A.C. 10A:4-4.1, for which he received two consecutive terms of the following sanctions: fifteen days' detention; three hundred sixty-five days' of administrative segregation and loss of commutation credit, and thirty days' loss of recreation privileges. We affirm.
Appellant has been confined at New Jersey State Prison since September 2005. On April 18, 2008, a fight erupted in the inmate dining room. A number of inmates were identified, either on a videotape which captured the incident or by officers who witnessed it. Appellant was among those identified in the witness reports of three corrections officers. Defendant claimed that he was up against the wall as instructed by the officers and did not participate in the fight.
Appellant's disciplinary hearing was held on May 2, 2008; the delay was primarily caused by the hearing officer's adjournment to review the videotape as well as the request of appellant and his counsel substitute for time to prepare confrontation questions. Appellant was afforded the opportunity for in-person confrontation of the three charging officers.
The hearing officer heard the officers' testimony and viewed the videotape. Eyewitness testimony established that appellant participated in fighting with other inmates in the dining room. The videotape confirmed appellant's identity as the inmate observed by the officers. The hearing officer thereupon adjudicated appellant guilty of the two infractions and imposed sanctions. On May 15, 2008, the Assistant Superintendent affirmed the hearing officer's decision, concluding that there was "substantial credible evidence to support the finding[s] . . . including multiple eyewitnesses."
On appeal, appellant contends that: (1) the hearing officer's decision was arbitrary, capricious, and unreasonable and not supported by substantial credible evidence; and (2) counsel substitute was ineffective for not advising appellant that a polygraph was "warranted" in this matter. Having reviewed the record in light of these contentions, we are satisfied that they are wholly without merit.
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)).
Appellant does not contend that he was denied the due process rights accorded to inmates charged with disciplinary infractions. See Avant v. Clifford, 67 N.J. 496, 522 (1975); McDonald v. Pinchak, 139 N.J. 188, 195 (1995).
Here, the hearing officer found that (1) the corroborative accounts of three different corrections officers confirmed appellant's disciplinary violations; and (2) the videotape confirmed his identity.
We briefly address appellant's claim that substitute counsel was deficient for not requesting a polygraph examination. N.J.A.C. 10A:3-7.1(a) provides that "[a] polygraph examination may be requested by the Administrator [of the correctional facility] or designee . . . [w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge . . . ." However, "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request." N.J.A.C. 10A:3-7.1(c). "This administrative code section is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez, supra, 382 N.J. Super. at 23-24. Given the strength of the evidence against appellant, we are satisfied that he was not prejudiced by the lack of the opportunity to request a polygraph examination.
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